FT 

MEADE 


CONTESTED-ELECTION CASE OF 

JK 1359 .. n . _ TI 

enh vs N PAUL v. THOMAS W. HARRISON 

Copy 2 

hearings 

lU.,1, BEFOBE THE 

COMMITTEE ON ELECTIONS No. 1 

HOUSE OF REPRESENTATIVES 

SIXTY-SEVENTH CONGRESS 

SECOND SESSION 
ON THE 

CONTESTED-ELECTION CASE OF 

JOHN PAUL v. THOMAS W. HARRISON 

FROM THE 

Seventh Congressional District op Virginia 


Tuesday, February 7, and Wednesday, 
February 8, 1922 



93942 


WASHINGTON: 

GOVERNMENT PRINTING OFFICE. 
1922 


Cci Vy cl. 













M 6 2 7 1924 



CONTESTED-ELECTION CASE OF JOHN PAUL v. THOMAS W. 

HARRISON. 


Committee on Elections, No. 1, 

House of Representatives, 

Tuesday, February 7, 1922. 

The committee met at 10,30 o’clock a. m., Hon. Frederick W. Dallinger 
(chairman) presiding. 

The Chairman. The committee will come to order. The contested election 
case of John Paul v. Thomas W. Harrison, from the Seventh Congressional 
District of Virginia, is before the committee. • 

Under the regular rules of the committee, each side is entitled to an hour 
and a half; that is, the contestant has one hour and then,the contestee has an 
hour and a half, and the contestant has then a half an hour in closing. What 
is the wish of counsel in regard to this case? 

Mr. Paul. Mr. Chairman, as is quite apparent to you gentlemen, this is a 
collosal record, and it involves a number of questions affecting the conduct of 
elections in our State, and that time limit we feel would be utterly inadequate. 
We do not want to trespass unduly on the time of the committee, but we re¬ 
quest that we be given a great deal more time than that, if it is agreeable 
to the committee. 

The case will be opened on my behalf by Col. Anderson, of Richmond. Of 
course the time that he will need for his argument is best known to himself; 
but I am sure that to open the case fairly and go over it fully so that the com¬ 
mittee will have a true understanding of it, will consume considerably more 
time than even the total allotted to us under the ordinary rule. Col. Anderson 
can best express his own ideas as to how much time he will need. 

The Chairman. We will hear Col. Anderson. 

Mr. Anderson. Mr. Chairman and gentlemen of the committee, of course I 
will make my argument conform to the wishes of the committee. Every lawyer 
learns to do that early in life, to conform to the wishes of the court. But this 
case will probably involve a review of the entire electoral system of Virginia, 
and the consideration of over 2,000 pages of record. I believe I can inform the 
committee more thoroughly if I am given time to do it in an orderly way, 
than by just touching the high spots in argument, if the committee is willing 
to hear me. 

I think I could open the case fairly well in two hours. I do not believe I can 
do it in less than that. I am perfectly willing to speak for an hour, if the com¬ 
mittee desires it, but it will take me two hours to open the case properly. I 
do not think I have ever spoken for two hours in but one case in my life, and 
I have been practicing law for 25 years; but here is a case in which there 
are 2,000 pages of record, and nobody can present that case fairly, so as to give 
the committee a due conception of the principles involved, in less than two 
hours; and if I was in a position to get it, I would want more; but that would 
be the minimum in which I think I can give this case the proper treatment. 

The Chairman. And how much time do you want for closing? 

Mr. Anderson. That would be for the committee to say. I should think, with 
Senator Paul, if he could have two hours in closing, it would be a very desirable 
thing; but that would be a question for the committee to determine. 

Now, if I get through the argument in less time, I am not one of those 
people who talk just to be talking, and if I can get through my argument in 
less than two hours, I am going to get through in less than two hours; but 
that is my judgment of the limit within which I can present the case. 

Mr. Harrison. So far as I am concerned, Mr. Chairman, I have no objec¬ 
tion to these gentlemen having all the time they want. We would not want 
any more than an hour and a half, I think. While it is true the record is 

3 



4 


PAUL YS. HARRISON. 


voluminous, the questions are very narrow, very short; and, of course, we 
would like to have some limitation before we close. When we close we do 
not care to have the whole matter reopened in a closing argument, when our 
mouths are shut, and I think there ought to be some limitation of that 
character. 

The Chairman. Of course, you understand, Mr. Paul, that the close is only 
for rebuttal. 

Mr. Paul. Yes, sir. 

The Chairman. It is only for the answering of new matter that is presented 
by the contestee. It is not supposed to be another argument. 

Mr. Paul. The only reason I think Col. Anderson in opening the case would 
need a good deal of time, is so that he might make a complete presentation 
of the case. 

Mr. Harrison. We have no objection to Col. Anderson having two hours, 
if he thinks it is necessary, but we do have objection to an unlimited close. 

The Chairman. It will not be unlimited. We will settle now what it shall be. 

Mr. Harrison. As I say, we do not care for any time, particularly; two 
hours or two hours and a half, if Capt. Paul can close in an hour or a half an 
hour. It seems to me it would be sufficient, because I can assure you we 
are going singly to follow Col. Anderson in any questions that may arise on 
the record. It seems to me that two hours and a half a side would be suf¬ 
ficient. 

Mr. Fletcher. Anything will suit me. 

Mr. Paul. You understand what I say as to closing argument; it would 
be largely influenced by contentions that might be made by contestee’s counsel. 
It nr glit take me a good while to review what they have to say, or it might 
take me a very little while. 

The Chairman. How much time do you think you ought to have? You do 
not think you ought to have as much time in closing as Col. Anderson has 
in opening? 

Mr. Paul. I would not like to be limited to less than an hour in closing. 

Mr. Harrison. I have no objection. It is up to you gentlemen. 

The Chairman. I understand you do not object? 

Mr. Harrison, I do not object. 

The Chairman. Of course, the rules of the committee provide for an ex¬ 
tension of time by vote of the committee. I understand, then, that you 
would like to have just double the usual allowance of time; that is, two 
hours in opening instead of one hour, and an hour in closing instead of half 
an hour? 

Mr. Paul. I would not like to be restricted to less than that. 

The Chairman. What is the pleasure of the committee? 

Mr. Hudspeth. I move that each side be given three hours. 

The motion was seconded. 

The Chairman. It is moved and seconded that the time usually allowed to 
parties he doubled; that the contestant be given two hours in opening, that the 
contestee then have three hours, if he so desires; and that then the contestant 
shall have one hour in closing. 

(The question was taken and the motion was agreed to). 

ARGUMENT OF HENRY W. ANDERSON, ESQ., OF RICHMOND, VA. 

Mr. Anderson. Mr. Chairman and gentlemen of the committee, this is a case 
of a contest for a seat in the House of Representatives from the seventh con¬ 
gressional district of Virginia, in which the contestant, John Paul, contests 
the seat of Hon. Thomas W. Harrison, who at present is the Representative 
from that district. 

The seventh congressional district of Virginia is located in the northwestern 
section of the State; that is, it embraces the lower end of the Shenandoah Val¬ 
ley, and the counties east of the Blue Ridge Mountains, parallel thereto, bor¬ 
dered on the west by West Virginia, on the north by the Potomac River, on 
the east bordered by the Southern Railway from here to Charlottesville, and 
it embraces the county of Albemarle and the city of Charlottesville, in the 
southeastern end of the district. 

The seventh congressional district of Virginia is composed of the counties of 
Albermarle, Clarke, Frederick, Madison, Rappahannock, Warren, Greene, Page, 
Rockingham Shenandoah and the cities of Charlottesville Harrisonburg, and 
Winchester. They constitute the district. 


PAUL YS. HARRISON. 


5 


In the election of 1920 the returns show upon the face of them that Capt. Paul 
carried the counties of Greene, Page, Rockingham, Shenandoah, and the city 
of Harrisonburg. 

Tlie counties and cities carried by the contestee according to the returns were 
Albemarle, Clarke, Frederick, Madison, Rappahannock, Warren, and the cities 
of Charlottesville and Winchester. 

The total votes, according to these returns, were 13,221 for Harrison and 
12,773 for Capt. Paul, or a majority, on the face of the returns, for Judge Har¬ 
rison, of 448 votes. 

The district is one of the most prosperous sections of the State. As you all 
know, the Shenandoah Valley and Piedmont is probably the most prosperous 
and highly cultivated section of Virginia ; perhaps also the most intelligent por¬ 
tion of the State. 

In the district is located the University of Virginia. There is the normal 
school at Harrisonburg. There are in that district very few of the Negro 
population. I refer to that because that is one of the questions in the record 
here. So that, probably, this district is representative of the best type of the 
population and civilization of the State—I mean in matters of opportunity, in¬ 
telligence, and prosperity. 

It is largely agricultural, the three cities involved being comparatively small. 

This morning I shall endeavor to present this case to the committee in the 
following general outline. I will outline, it in order that you may understand 
.just what I am driving at. because some of it may appear to he irrelevant at the 
beginning. 

First. I shall undertake to lay before you as clearly as possible and as briefly 
as possible the general electoral system prevailing in Virginia, and then under¬ 
take, without going into details of the record—because all the members of this 
committee I assume are experienced lawyers, and they know that in a record of 
this size I can possibly pick out evidence, and counsel on the other side can pick 
out evidence to sustain our relative positions, and argue the case through the 
records; and I shall therefore ask the committee to permit me to state the 
facts as I think they are proven by the record, and counsel on the other side, 
of course, having the same opportunity to state the facts from the opposite 
point of view as they may think they are proven. 

As to the electoral system in Virginia, it is necessary that I should get that 
picture before the minds of the committee, in order that they may understand 
the points which we shall argue, and I will state these in advance. 

First. That the vote was erroneous in the fact that a large number of persons 
voted in this election who were not lawfully registered, and therefore their votes 
were void ; and, therefore, if these votes were eliminated Capt. Paul would he 
elected. 

Second. That a number of persons voted in this election without paying their 
poll tax as required by the laws of Virginia. If they were eliminated, along 
with other facts in the case, Capt. Paul would he elected. 

Third. That the conduct of the election in certain precincts and in certain 
counties, largely Democratic, was such that the returns at those precincts do 
not represent the expression of the will of the people at all, and that there was 
no election in those precincts, and therefore they must be thrown out, and if 
thrown out, Capt. Paul is elected. 

Therefore the three points involved are—first as to registration, second as to 
poll tax, and, third, as to the conduct of the election in certain precincts in the 
district. 

To understand the bearing of those, it is necessary, as I stated, to undertake 
to present to you the general electoral system of Virginia. 

The present electoral system of Virginia is based upon, and is the consequence 
of, the constitution of 1902. There are several gentlemen present here to-day 
who were members of that convention, and in criticising the constitution of that 
convention I think that they will understand I am not intending to make any 
special criticism of them or any other members of that body, and that whatever 
I may say here in the argument of this case is not intended to reflect upon their 
personal conduct, their integrity, or motives. I am going to argue this case on 
the law. 

That convention was the result of a series of proceedings in the State which 
I think the committee should understand. The constitution of 1868, immediately 
after the Civil War, provided that there should he no new constitutional con¬ 
vention for 20 years, or until 1888. 


6 


PAUL VS. HARRISON. 


In 1888 and 1889 the question of whether there should be a constitutional 
convention to revise the constitution was submitted to the people, and it was 
voted down. 

Again, in 1897, I think it was, the question was submitted and was voted 
down, about two or three to one. 

The Democratic Party had been—I wish to refer to parties as little as pos¬ 
sible. ( illy as necessary in dealing with the political conditions—the Demo¬ 
cratic Party had been in control of the State since about 1885, and in 189G the 
elections were close in the State. For instance, in 1888 the Democrats carried 
the State by only 1,800. In 189G the majority against McKinley was 18.000 or 
20,000, in a vote of 294,000 votes. 

In 1900 the Democratic convention at Norfolk adopted a resolution indors¬ 
ing the proposition for a constitutional convention, thereby putting the party 
behind it. It was overwhelmingly the dominant party. That resolution con¬ 
tained a provision that if a convention were held the new constitution should 
be submitted to the people for ratification or rejection. On the strength of 
that resolution the people voted, by a small majority, for a convention. 

The act calling the convention provided in the preamble that the new con¬ 
stitution as framed by the proposed convention should be submitted to the 
people for ratification or rejection. 

The convention met in 1901 and was in session for practically a year; and 
then, by a vote of 47 to 38, it proclaimed the constitution as the constitution 
of Virginia, without submitting it to the people; and in the constitution itself 
provided that every officer of the State, including the judges,, should on or be¬ 
fore the 20tli of July, 1902, take the oath to uphold and defend and obey that 
particular constitution, cr that their offices should be vacated. Thus, by a 
vote of 47 men, a perfect revolution was achieved in Virginia, and they adjudi¬ 
cated their own acts to be right by requiring the judiciary, legislative, and 
executive officers to take the oath to uphold and obey the constitution which 
they themselves thus proclaimed. 

Therefore, we are here this morning under a constitution which has never 
been voted upon by the people of Virginia, which the people never had an op¬ 
portunity to accept or reject, but which was imposed upon them by 47 men. 

What was the purpose cf that constitution? In the debate, Mr. Alfred P. 
Thom, whom you probably know, who is now in Washington, in speaking of 
the purpose of the convention, said: 

“ The meaning of this convention is that the great sore upon the body politic 
is the fact that the black man possesses the suffrage, and if you are to do noth¬ 
ing in the way of throwing an impediment in his way, why is this convention 
assembled ? ” 

Mr. Mdlwaine, one of the members of the convention, a lawyer from Peters¬ 
burg, said: 

“ In my honest judgment, the bete noire which has confronted this conven¬ 
tion from the day on which it assembled up to the present hour, which has 
palsied its energies and made it comparatively inefficient for the purposes 
which called it together, is the contention that it is our duty, as far as possi¬ 
ble, to disfranchise every Negro, and at all hazards to enfranchise every white 
man in the Commonwealth.” 

Now, I am not here this morning to discuss the race question, and my object 
in quoting these two extracts from the remarks of leading members of the 
convention is merely to show the animating purpose behind the machinery 
provided for conducting elections, which I am going to outline to you in a 
moment. 

Finally, Mr. Carter Glass, now Senator from Virginia, presented the plan for 
franchise and the electoral system which was adopted, and in concluding his 
argument upon that question he used the following language: 

“ But, Mr. President, in the midst of differing contentions and suggested per¬ 
plexities there stands out the uncontroverted fact that the article of suffrage 
which the convention will to-day adopt does not necessarily deprive a single 
white man of the ballot but will inevitably cut from the existing electorate 
four-fifths of the Negro voters. [Applause.] That was the purpose of this con¬ 
vention ; that will be the achievement. 

“Mr. Pedigo. Will it not be done by fraud and discrimination? 

“Mr. Glass. By fraud, no; by discrimination, yes. But it will be discrimina¬ 
tion within the letter of the law, and not in violation of the law. Discrimina¬ 
tion ! Why. that is precisely what we propose; that, exactly, is what this con¬ 
vention was elected for—to discriminate to the very extremity of permissible 




PAUL VS. HARRISON. 


7 


action under the limitations of the Federal Constitution, with a view to the 
elimination of every Negro voter who can be gotten rid of legally without ma¬ 
terially impairing the numerical strength of the white electorate. As has been 
said, we have accomplished our purpose strictly within the limitations of the 
Federal Constitution by legislating against the characteristics of the black 
lace, and not against the ‘ race, color, or previous condition ’ of the people them¬ 
selves. It is a fine discrimination, indeed, that we have practiced in the fabrica¬ 
tion of this plan; and now, Mr. President, we ask the convention to confirm our 
work and emancipate Virginia. I ask for a vote on the article of suffrage.” 

It was carried by an overwhelming vote. The convention was 88 Democratic 
to 12 Republican. 

Mr. Chairman, in discussing that question I do not, as I say, intend by any 
means to reflect upon the motives or the character of the gentlemen to whom I 
refer, who are my friends; but the discrimination here proposed was a dis¬ 
crimination against the characteristics of a race. What were those characteris¬ 
tics? Presumably, ignorance; and those characteristics common to the white 
man as well as to the colored man. Otherwise the discrimination would be 
unconstitutional. Therefore this constitution went to the people of Virginia 
with the declaration of its founders and framers that its purpose was to dis¬ 
criminate against a large body of the electorate of that Commonwealth; and if 
that povver of discrimination went to a characteristic which was common to 
both white and colored—and it must have done so to be constitutional—then the 
electoral officers of the State were told that it was enacted for the purpose of 
discriminating against those whom they did not desire to vote. That was the 
very foundation of this whole constitution. 

As to that discrimination, naturally it is not a question of party, Democratic 
or Republican ; but the human race is so constituted that if you place a power in 
its hands in a matter in which passion and prejudice is aroused, as it is in 
electoral contests, and with the understanding that that power is intended to be 
used for the purpose of discrimination, it will use it for the elimination of all 
those who are not favorable to the views of those who hold that power. That is 
exactly what has happened in Virginia. There has not been an election in Vir¬ 
ginia in 20 years. Every one of them has been a farce. Such were the condi¬ 
tions when that constitution was passed. 

Mr. Hudspeth. Would you permit a question there? 

Mr. Anderson. Yes, sir. 

Mr. Hudspeth. Has that ever been carried to the courts? 

Mr. Anderson. I think it was, in the court of Virginia; but the judges in 
the Virginia court had to take an oath to uphold this constitution. In other 
words, the constitution provided, in one of its clauses, that they should take 
that oath. 

Mr. Hudspeth. Has it not ever been carried higher? 

Mr. Anderson. To the United States Supreme Court? 

Mr. Hudspeth. Yes. 

Mr. Anderson. It came up, yes; but it was held that it was a political ques¬ 
tion, and they had no jurisdiction of it. 

Mr. Hudspeth. Pardon the interruption. 

Mr. Anderson. I want you to interrupt me with your questions; I am here 
to answer your questions and if there is any question that occurs to any of 
you gentlemen, I wish you would not hesitate to interrupt me. 

Now, what is that election machinery? The Legislature of Virginia, under 
this constitution, elects the judges. I can refer to my notes here and give 
you the section, if anyone wants it. The Legislature of Virginia elects the 
judges of the circuits and the judges of the corporation courts. The jurisdic¬ 
tion of these circuit courts, county courts, and corporation courts is essen¬ 
tially the same for the purposes of this argument. The judges of the circuit 
courts and the corporation courts are elected for six-year terms, but prac¬ 
tically it means election for life. There are very few changes. Those judges 
are all Democrats. There has not been a Republican judge in Virginia in 
the last 25 years; not a single one since the constitution was adopted. They 
are men of average character, ability, and intelligence, and I do not mean 
to say that they are blindly partisan, but often they are partisan, and they are 
Democratic partisans. 

Those judges, mind you, the judiciary of the State, control the electoral sys¬ 
tem of the State. Therefore when you come to test the question of the validity 
of an electoral act, you come up against the people who appointed the people 
who conducted the act. 


8 


PAUL YS. HARRISON. 


They appoint an electoral board in each county and city, consisting of three 
persons. The law does not require that the board shall be bipartisan, and, 
with a few notable exceptions, they are all Democrats and partisan Demo¬ 
crats. I think this record bears out that statement. 

The electoral board of each county and city consists of three persons, all 
of one party, appointed by a judge of that party, and they have a clerk. 

Now, the electoral board appoints the following election officers. They 
appoint a registrar for each jurisdiction and that registrar registers all the 
voters. I will come to that in a moment. Then there are three judges of 
election and two clerks of election in each precinct. The constitution says 
that as far as possible those judges of election herein shall be representative 
of the two political parties that had the largest vote at the last election. 
That means the Democratic and Republican parties, of course. The Demo¬ 
crats being in the majority, that would mean two Democrats and one Republi¬ 
can, in substance. But as this record shows, it is almost the general practice 
in the State to appoint three Democrats, in the Democratic sections of the 
State especially; and if a Republican is appointed, he is selected by the 
opposite party, you see. The Republican Party has nothing in the world to 
do with naming him. Therefore what happens is—the Republican Party 
would do the same, if they had the power instead—they either select a man 
who is in sympathy with their point of view or they select a man who is too 
old to get to the voting place on election day, or a man who is in name Re¬ 
publican but in fact is Democratic. 

They elect those three judges of election; and they elect two clerks of elec¬ 
tion who are not required to be representative of the two parties. They are 
both Democrats. 

So we have an electoral board appointed by the judge, which appoints the 
registrar, the judges of election, the clerks of election, and the whole elec¬ 
toral machinery; and the only person of the whole lot the minority party is 
entitled to have at all is one judge of election, out of the whole business, and 
he is elected by the opposite party represented by the electoral board; and 
you gentlemen know enough of politics in America, regardless of party, to 
know what that means. 

Now, after the judges of election have been selected, it is provided that the 
judges and registrar can not hold any other office. That is a general provision 
of the Constitution, section 31. 

Suppose you hold an election and you want a remedy for that condition. 
Something goes wrong. 

In the first place, as to the right of registration, you have a right of appeal 
to the circuit court, and then to the supreme court, if the registrar refuses to 
register. If it is a question involving the propriety of a prior registration, you 
have the same right if it is denied. 

If it is a contested-election case for one of the higher offices of the State, 
you go to a general assembly. That assembly is Democratic. 

If it is for one of the subordinate offices of the State, three of these same 
circuit judges that appoint the electoral officers try the case. Therefore you 
come right around to the same people again who started it. 

If it be a county, district, or local office, it must be tried by the same judge 
who appoints the electoral board that appoints the judges and clerks of election; 
and the statute provides that there shall be no appeal. If you can beat that 
outside of Turkey, I would like to know where. You have no redress at all. 

Now let us see as to the qualifications for voting. The qualifications for voting 
in Virginia are the following: The person must be over 21 years of age, must 
have resided in the State two years and in the county one year and in the 
precinct 30 days. 

Then the vote is of two classes. 

Mr. Luhring. Are they required to be registered at all? 

Mr. Anderson. l r es; I am coming to that now. The constitution provided 
that there should be a general registration of voters in 1902 and 1903, which 
was to form what was to be called tbe permanent roll. Under that constitutional 
provision the following persons were allowed to register: Old soldiers of either 
Army of the Civil War; the sons of soldiers; any person who owned property 
upon which he had paid taxes the year before in excess of $1; and any person 
not coming within those classes who could read a clause of the constitution 
and explain it, or who could explain it intelligently when read to him—and the 
registrar did the reading. Well, the result of that registration was to cut the 
vote for President from 294,000 in 1896 to 130,000 in 1904. Of the 164,000 cut 
out in that time, over two-thirds were Republican votes. 


PAUL VS. HARRISON. 


9 


Mr. Luhring. Did they attempt to register? 

Mr. Anderson Oh, yes; they went to register. I will give you an illustration. 
In one county the Commonwealth attorney told a registrar to ask every Repub¬ 
lican who appeared to register, What was the bill of attainder, and if lie did not 
la i n to register him. He registered 15 only. You all know what the 

nil ol attaindei is, but I do not suppose the ordinary voter would know once 
in a thousand times. You can cut down the vote to anything you want it bv 
asking questions of that kind. " J 

Mr. Hudspeth. Was that done in this election? 

Mr. Anderson. No ; that was in making the permanent roll. That was not 
adopted in this election, but in 1902 and 1903, when tliev wanted to get a 
permanent roll. 

The const.tution provided that the people who registered should never he 
required to register again unless they removed from the State and came back 
again ; so that that permanent roll, taking the white people separately andi the 
colored people separately, was to he kept in the clerk’s office, and was to remain 
the permanent roll of voters. They would never have to register any more. 

Mr. Hudspeth. Let me get that straight. If a man registers once he does 
not have to register again for the purpose of voting unless he leaves the State 
and returns? 


Mr. Anderson. Yesthat was the provision in 1902 and 1903. In 1904 and 
afterwards they had to comply with certain other conditions to register. You 
see, by that registration they had gotten the old soldiers and their sons on the 
roll, and had gotten the people who had property; and by requiring an explana¬ 
tion of a clause of the constitution they had succeeded in practically eliminat¬ 
ing, speaking quite plainly, the entire Negro vote. That was what it was for. 
They reduced it to nothing, practically. 

In addition to that they had eliminated a very large proportion of the Repub¬ 
lican white vote in the western part of the State, because the same discrimina¬ 
tion was exercised against it as was exercised against the Negro in the eastern 
part of the State. 

Mr. Luhring. The man who attempted to register and failed and did not 
succeed in getting on the permanent roll, had a right to apply on the next 
election? 

Mr. Anderson. Y T es; he could' come again. The provision is in section 20 of 
the constitution. Section 19 provides that a roll containing the list of names of 
all persons registered and entitled to register prior to 1904, sworn to and certi¬ 
fied by the officers of registration, shall be filed for record and preservation in 
the clerk’s office. Then section 20 reads as follows: 

“ Who may register after 1904. After the 1st day of January, 1904, every 
male citizen of the United States, having the qualifications of age and resi¬ 
dence required in section 18, shall be entitled to register, provided,” etc. 

Now, I will ask you to get this very clearly, because here is the main issue 
in this case. The proviso is as follows: Provided , 

“ First. That he has personally paid to the proper officer all State poll taxes 
assessed or assessable against him, under this or the former constitution, for 
the three years next preceding that in which he offers to register; or if he comes 
of age at such time that no poll tax shall have been assessable against him 
for the year preceding the year in which he offers to register, has paid $1.50, in 
satisfaction of the first year’s poll tax assessable against h m.” 

In other words, according to the phraseology of the law, if a man came up to 
register after January 1, 1904, he had to show that he had paid all of his poll 
taxes for three years preceding, at $1.50 a year; or, if he came of age or had 
moved into the State within that limit of time—of course, if he had moved 
into the State he would have been there two years, so lie would have paid two 
years’ assessment—if he came of age the year before, and too late to have paid 
his poll tax, he would pay $1.50, the assessment being on the 1st of February, 
and if he came of age between February and' the November election, he would 
pay $1.50, which would represent his tax for the next year. 

Now, all the women, in effect, came of age August 26, 1920, so that they all, in 
1920, came within that limitation. 

Second, if he has paid those poll taxes he has got to present his application; 
he must make application to register in his own handwriting, “ without aid*, sug¬ 
gestion, or memorandum, in the presence of the registration officers, stating 
therein his name, age, date and place of birth, residence, and occupation at 
the time and for the two years next preceding, and whether he has previously 
voted, and, if so, the State, county, and precinct in which he voted' last.” 


10 


PAUL VS. HARRISON. 


That is his application to register. 

The court in Virginia, as I will point out in a minute, has held? that that is 
jurisdictional. In other words, the registrar has nothing to do with it until 
that application is filed. That is, the circuit dourt of the State. It has never 
been in the supreme court. 

The Chairman. All those details in reference to qualifications of voters are 
in the State constitution? 

Mr. Anderson. Yes; I am reading from it. 

The Chairman. Did the legislature pass any law embodying the same pro¬ 
visions ? 

Mr. Anderson. Yes; in practically the same language. You will find the 
statutes to which I refer are in exactly the same terms; and where the legis¬ 
lature is authorized to do so, additional provisions were inserted for the conduct, 
of elections. First, you see. he has to pay the poll tax before he can register. 
Second, he has to come there and make his application, stating certain things. 
Third, the provision is as follows: 

“ Third. That he answer on oath any and all questions affecting his qualifi¬ 
cations as an elector submitted to him by the officers of registration, which 
questions, and his answers thereto, shall be reduced to writing, certified by the 
said officers, and preserved as a part of their official records.” 

Now, the law provides—in answer to your question, Mr. Chairman, I will 
say—that those written applications, so taken as a basis for the registration, 
shall be filed in the clerk’s office and kept for one year; and the constitution 
requires that the questions and answers shall be preserved. 

Now, therefore, he have the qualification, with that as an electoral machinery, 
every officer of which, in every county and city, is of the majority party, with 
the exception possibly of one judge of election being of the minority party 
under the conditions that I have stated. 

Now, a county might have 25 Republican votes for every 1 Democratic—I 
wish you would get this in your minds, because generally in contested-election 
cases we have certain Democratic precincts and certain Republican precincts, 
but there, is no such thing as a Republican precint in Virginia, so far as I 
know, but it would not make any difference, because the electoral machinery, 
the entire machinery everywhere, is entirely in the hands of the Democratic 
Party. And that electoral machinery is controlled by the judge to whom the 
appeal must be made for relief, and he is elected by the legislature. So that 
you might have a county with nine-tenths of it Republican, or have a city 
or a section or a district nine-tenths of which was Republican and only one- 
tenth Democratic, but as long as the legislature was Democratic and elected 
Democratic judges to control in these counties and circuits, you would have a 
complete Democratic machine. 

The Chairman. How many voting precincts are there in this district? 

Mr. Anderson. In the district? I will ask Capt. Paul to answer as to that 

Mr. Paul. One hundred and fifty-seven. 

The Chairman. Would you be willing to state your opinion as to what the 
testimony shows as to how many of those precincts had a Republican judge of 
election ? 

Mr. Anderson. I would like Capt. Paul to answer that. 

Mr. Paul. Do you wish me to answer? 

The Chairman. Yes; I wish you would. 

Mr. Paul. I can give you a summary of it. I can not tell you by counties. 

In Albemarle County there are seven precincts in which there was possibly 
a Republican judge out of 22. 

In Clarke County there were three precincts out of nine where it is admitted 
there was a Republican judge, three where it is admitted there were none, 
and three in which there was no one willing to testify as to the political affilia¬ 
tions of the judges. 

In Frederick County there are 20 precincts and there were Republican 
judges in 12. At one place there was a nominal Republican judge, who we 
think was a Democrat, and we think we established that. 

In Winchester there were Republican judges in each one. 

In Shenandoah County there was probably a Republican judge at every 
precinct out of 28, and in one precinct where there were no Democrats there 
was none whatever. That was at Liberty Furnace. 

In Rockingham County there were Republican judges in 24 precincts. 

In Page County there were Republican judges at all precincts. 

In Greene County there were Republican judges at all four precincts. 


PAUL YS. HARRISON. 


11 


There was no evidence taken in Warren County and in Rappahannock 
County. 

The same is true for Harrisonburg. 

The lack of Republican judges was confined almost entirely to the counties 
of Albemarle, Clarke, and Frederick. 

Mr. Anderson. Those are the places in which we claim that the fraud took 
place. 

The next thing I want to take up is the additional requirements for voters. 

After registration every voter is required to pay his poll tax for three years 
at least six months in advance of election. That is, before he can vote he has 
got to pay all of his poll taxes for three years past, at $1.50 a year, at least 
by the 7th of May, if the election is on the 7th of November. 

Mr. Luhring. That is also required for registration, is it not? 

Mr. Anderson. The payment of poll taxes, but not within the six months. 
If, subject to exceptions hereafter stated, a man does not appear on the poll-tax 
list as having paid those taxes six months before the election he may be on 
the books and may have paid, but he can not vote at that election. 

Mr. Paul. Mr. Luhring means that the payment of poll taxes is also a pre¬ 
requisite for election. 

Mr. Luhring. Yes; I understand. 

Mr. Anderson. Now, in order to get it clear, the constitution requires that 
there shall be a poll-tax list; that the treasurer of the county shall, at least 
five months before the election—you see, it is six months between the limit 
of payment of the poll taxes—make out a list of all persons who have paid 
their poll taxes, which shall be filed with the county clerk, and he shall 
make copies and post them at all the precincts before the election; that is, 
within the five months’ period. I will not go into details, but there are certain 
people that can not be on that poll-tax list. For instance, there are old 
soldiers of either Army. They are exempt; they are not required to pay a 
poll tax; the clerk has no record of them. 

Then there are persons who pay their poll tax within the period of six 
months, or after February 1, because they would not be assessed after Feb¬ 
ruary 1. 

Then, in at least one county, Rockingham County, the treasurer has held 
that he was not required to put anybody on the poll tax list who had not paid 
poll taxes for the three years. 

Now, subject to those exceptions, if a man paid two years’ poll taxes he was 
not entitled to vote. Therefore you have poll-tax lists which the law requires 
shall be concluive evidence of the facts stated therein—that is, that the man 
has paid his poll tax; but you have, in addition to the poll-tax list, persons who 
can not be on the poll-tax list—that is, old soldiers who are exempt, persons 
who have come of age within the period that are not assessed; and third, in 
those counties where the lists only carry those who have paid three years’ poll 
tax, those who have been on only two years would not be on the list though 
•eligible to vote. 

The poll-tax books are furnished by the Commonwealth. 

The judges are required to open the polls at sunrise. 

Mr. Luhring. Just at that point, the poll books you speak of, what do they 
consist of?' 

Mr. Anderson. The poll books are the books which are kept by the two 
clerks of election. When a man votes his name is entered, and should be on 
the poll books. The ballots are numbered. 

Mr. Rose. When you speak about the ballots being numbered, does that mean, 
now, that the elections there are not secret as in other States? 

Mr. Anderson. I am coming to that in a minute. The constitution has the 
following provisions: 

“ 627. Method of voting. All elections by the people shall be by ballot: all 
elections by any representative body shall be viva voce and the vote recorded in 
the journal thereof. 

“ The ballot box shall be kept in public view during all elections, and shall 
not be opened, nor the ballots canvassed or counted, in secret. 

“ So far as consistent with the provisions of this constitution, the absolute 
•secrecy of the ballot shall be maintained.” 

This is the constitution; this is not any statute. 

Therefore, when you come to vote on election morning the polls ought to be 
opened at sunrise. I am going to run over this law very hurriedly, without 
reference to details. 


12 


PAUL VS. HARRISON. 


At sunrise the registration books are furnished by the registrar to the three 
judges. If one of the judges is not present, the other two judges select a third 
from among the bystanders. The judge who is absent is given a hour to be 
present, and after that a judge is selected from the bystanders. One of the 
favorite devices in Virginia is to appoint as judge a Republican who is so old 
that he can not get there, and then select a Democrat to act in his place, and 
there you have three Democratic judges. 

Mr. Bulwinkle. Did that happen in these precincts? 

Mr. Anderson. It did happen in a number of these precincts. 

Mr. Bulwinkle. In how many? 

Mr. Anderson. I can not tell you, but I will come to the precinct records in a 
minute. 

A man has got to have a secret ballot. The vote has got to be by ballot. 

In addition to that the constitution provides that the ballot shall be one with 
no insignia or indication of party on it. The constitution provides that, that 
you shall have no symbol or insignia on the ballot to indicate party; and where 
a person votes that ballot he has got to mark off the name of every person that 
he does not want to vote for and leave on the ballot only those he does want to 
vote for. 

Mr. Hudspeth. In presidential elections do the ballots state who are the 
Republican and who the Democratic candidates? 

Mr. Anderson. No, sir; the ballot does not say whether they are Democratic 
or Republican. It is not allowed under the constitution to say what they are. 
It is one of the favorite devices—they are not even required to print them alpha¬ 
betically. They must be all in proper order. The names shall be printed on 
there, and that is interpreted to be in the particular order that the electoral 
board designates. The ballots are printed in each county by the electoral 
boards. You have to tile a notice of candidacy, and that is certified down, and 
ballots are printed under the direction of a member of the electoral board. The 
printer is sworn to secrecy and he can not leave any forms about. Whether he 
does or not is another question. 

Then those ballots are left sealed and are turned over to the electoral board 
within 30 days of the election, and they are required to have a seal on the back 
of the ballots. At tlie time of sealing they must be counted by the chairman 
of the electoral board in the presence of two county officers, then they must be 
divided into packages, and double the number of the voters at each electoral 
precinct—and the law is specific and the constitution, too, upon that—delivered 
by the clerk of the electoral board to one of the judges of the precinct, so that 
they are kept under an official hand all the time. The judge of election can 
only open them in the presence of all of the judges of election and count them. 
There should be two for every registered voter. 

Then, after they are opened and counted, they are given out to the voters, 
as I will show you in a minute. 

You come to the election morning, and the constitution requires that the 
ballot box shall be in the public view—first opened outside and emptied, and then 
put in the public view. There shall be three judges of election and two clerks 
of election in that place; required to be there. They have the registration 
books and these poll-tax lists that I have spoken of, so that if a voter comes 
up to vote anywhere in Virginia he calls his name out at the window. Nobody 
is allowed to come within 40 feet of the ballot box. Everybody is kept away 
40 feet, except the persons who want to vote, or if you want to challenge a vote. 
Here is the form of a ballot. This is not an official ballot; we were not 
allowed to have one of the official ballots, but we had this printed ourselves. 
When you ask for a ballot you are given a ballot like this. [Indicating.] 

The constitution provides, and the law, that the electoral board shall provide 
electoral voting booths at each precinct, which shall be so arranged that the 
judges can not see a voter, nor can anyone else see a voter, while he is marking 
his ballot, although it must be in sight of the judges; yet they can not see the 
marking of the ballot in the booth. 

Now we come to a very important aspect of this case. All those persons 
who registered on the permanent roll—you recall the making up of the perma¬ 
nent roll in 1002 and 1903—are entitled to the assistance of one of the judges 
in making their ballots, old soldiers, and all those people; they can ask any judge 
to help them and he will mark their ballot for them. But after January 1, 
1904, the constitution provides that no person shall be given assistance unless 
he be physically disabled. He can not be assisted otherwise; the idea being to 
test them on educational qualifications. 



PAUL YS. HARRISON. 


13 


This ballot is given to a voter and he goes into a booth and marks off all 
the names he is not going to vote for, and if he has a name less than three- 
fourths marked through it is an invalid marking. Over 20 per cent of the vote 
of A irginia is thrown out every election after all that combing for intelligence. 

Then the voter is required by law to fold his ballot so that the seal will show 
on the outside, and return it folded. The election official is not allowed to look 
at it. I am now quoting the law to you. He then calls the name of this 
voter, and if he proves a qualified voter on the registration list and the poll-tax 
list, or is shown to be in a class not required to be on the poll-tax list, his 
name is called and entered in duplicate in the two poll books and his vote is 
then required to be dropped by the judge into the ballot box. 

Mr. Bulwinkle. There is no marking on the ballot? 

Mr. Anderson. Not the slightest on the outside, except the seal of the electoral 
board. There can not be any marking. 

Mr. Bulwinkle. After it is in the box nobody can tell how that man voted? 

Mr. Anderson. That is right, this far, after it is in the box. 

Now, the voting takes place, and then after it is over the law requires that 
the judges shall burn or otherwise destroy the nonused ballots. If a man takes 
a ballot and destroys it or marks it wrong, he has got to take it back, and all 
the unused ballots are to be destroyed before the ballot box is opened. 

Then they shall tally the vote in the ballot box with the total ballots, and 
then they count the ballots for the respective parties and make the return. 

Then they are required to seal all the ballots that are to be returned to the 
clerk’s office and return them with these poll books to the clerk next day, and 
there they are kept. 

Senator Paul calls my attention to this fact: When the election is concluded 
the law requires that two representatives of each party, four in all, shall have 
a right to be present at the opening of the ballot box. It shall not be opened 
in secret. 

Mr. Luhring. Is that the language of the Constitution? 

Mr. Anderson. That is the language of the Constitution—two persons. And 
in the event that two do not ask to be present—if they do not ask to be pres¬ 
ent—two of each party—then it is the duty of the judges to call out to the 
bystanders and have four persons to be present, selected from the bystanders. 
That is the requirement of the law, that these persons shall be present at the 
opening of the ballot box. The law requires that. 

After that is done they destroy the unused ballots, and after counting the 
ballots and making the return they seal the ballots, with the books, and one 
of the judges must take those sealed ballots, together with the poll books, back 
to the clerk of the court, where they are kept. 

Mr. Hudspeth. They destroy those unused ballots in the presence of the by¬ 
standers? 

Mr. Anderson. They destroy them in the presence of witnesses—are supposed 
to do it. So that we have a system in which the law contemplated that these 
ballots, from the day they were printed by the printer until they are used, 
returned and counted and put aside by the hands of some person who is an 
official of the election—that is, a judge of the election or clerk of the electoral 
board—never can be out of their hands; and the important thing is to destroy 
these ballots before the ballot box is opened. Otherwise you can do as you 
choose with the election, because you have two ballots for every voter on the 
registration books; and, in the third place, that for all persons who registered 
after 1904 there can be no assistance in making out ballots. 

So far as I can do it in this time, in a cursory way I have gone through this 
system, and that is about the situation with our election laws. You can see 
that a man has to be pretty expert if he ever gets through that system. 

In this particular election the chief claim is this: Before I turn to that, how¬ 
ever, I want to call your attention to this important thing which I will ask you 
to keep in your minds when you consider this case. The Supreme Court of the 
United States, in the case In re Coy (127 U. S.), used this language as to the 
Federal statute—an Indiana statute—of a similar character to this: 

“ Tlie object to be attained by these acts of Congress is to guard against the 
danger and the opportunity of tampering with the election returns, as well as 
against direct and intentional frauds upon the vote for members of that body. 
The law is violated whenever the evidences concerning the votes cast for that 
purpose are exposed or subjected in the hands of improper persons or unauthor¬ 
ized individuals to the opportunity for their falsification, or to the danger of 
such charges of forgeries as may affect that election, whether tlie> actually do 


14 


PAUL VS. HARRISON. 


so or not, and whether the purpose of the party guilty of thus wresting them 
from their proper custody and exposing them to such danger might accom¬ 
plish this result.” 

It does not matter about the purpose. The law is, whenever these safe¬ 
guards which the constitution of Virginia—and the law also—has thrown 
around these ballots, have been broken down to a point that at any stage of the 
proceedings the ballot passes into the hands of an unauthorized person who can 
manipulate it, whether he does, or whether he intends to do it, or not, there is. 
no election. 

Now, you can see, under the laws of Virginia, that that system is controlled 
by the judges-absolutely, from top to bottom. The electoral board is ap¬ 
pointed by the judges, the officers of election are appointed by the electoral 
board; only one possible representative of the minority party, one election 
official, selected by the opposite party; with the usual results. 

You have here a system in which, at every critical point, one person can 
change the whole result. At the registrataion the registrar asks questions, and 
therefore is given arbitrary power. 

In the appointment of judges, the electoral board can select the judges, and 
is therefore given arbitrary power. 

When you come to the question of the return of the election, if you ever let 
those ballots get out of the hands of that one judge of election who has them 
in his control, or if you fail to destroy the unused ballots, or leave them un¬ 
sealed, or if the judge of election is allowed to assist the voters, or if the 
voter votes on a table like this, openly, then the secrecy of the ballot is de¬ 
stroyed. The impress of the community prejudice may be put upon the voter, 
and, in addition to that, he may be made to vote in any way they see tit. But 
if you allow men to be put on the registration list first and then allow the 
judges to assist voters, then you have no election at all. The whole system 
falls right there, if those two things are done. I will show to you in a minute 
that those things were done. 

This case is nothing novel except that it is in a community of unusual intel¬ 
ligence and it was in 1920; the women had just come into the right to vote. 
It is nothing new to us in Virginia. But in this case three essential things 
happened. People were registered by the thousands. Women without written 
applications, as required by the constitution, were registered; a number of 
people were voted who had never paid any poll tax; at many of these precincts 
the elections were conducted absolutely contrary to, and without any atten¬ 
tion to, the laws and the constitution, and there was no election. 

Now, first, as to the registration. It is contended by counsel in their brief 
for contestee that there is no actual fraud shown. Gentlemen, in a question 
involving the constitutional rights of citizenship, I do not think that the 
question of whether a man intended to commit a fraud or not is of the 
slightest importance. I dislike to charge people with intentional fraud; but 
the violation of these acts complained of is made a crime under the laws and 
constitution of Virginia, except that it is a perfectly useless provision, because 
you have to try the man before the same judge who appoints him, and before 
a jury selected by that judge; so that while the statute makes it a crime, 
it is not enforced at all. 

Mr. Hudspeth. You state, before a jury he selects? 

Mr. Anderson. Yes. 

Mr. Hudspeth. Does the judge select the jury? 

Mr. Anderson. The judge selects the grand jury. 

Mr. Hudspeth. You have a certain number to select from- 

Mr. Anderson. Not for the grand jury. 

Mr. Luhring. Are not grand juries drawn from the box? 

Mr. Anderson. Not the grand jury. The petit jury is. 

Mr. Luhring. Do you mean the judge of the court selects anybody he wants 
for the jury? 

Mr. Anderson. Yes; and if he does not like the grand jury he says “ Waive 
it, and we will have a special jury.” I do not want to go into this, however. 

I am not charging the judges of Virginia with fraud. I just say the oppor¬ 
tunities are there. 

Mr. Hudspeth. These are district judges, as we call them? 

Mr. Anderson. Circuit judges, we call them. 

Mr. Hudspeth. This judge selects the men who sit on the grand jury? 

Mr. Anderson. Yes, sir. 



PAUL VS. HARRISON. 15 

Mr. Harrison. He selects them at the beginning of the year, and they are 
drawn by lot for the year. 

Mr. Anderson. He selects the personnel of the grand jury, and if lie does 
not like the grand jury lie will say “We are going to have a special grand 
jury tor the purpose,” and that will be the end of that grand jury. I can 
give you an instance of it in rny experience. 

Mr. Harrison. I have known two special grand juries to be held each year. 

Mr. Gilbert. Is it the contention here of Senator Paul that he was elected 
or that there was no election? 

Mi. Anderson. That he was elected. Now, I want to hurry, on gentlemen. 

Mr. Luhring. We will try to give you more time, if necessary. I would 
like to get this grand jury matter right. You stated that the judge of the 
court picks the grand jury. 

Mr. Anderson. He makes up a list himself. 

Mr. Luhring. Is it drawn by lot or by chance? 

Mr. Aiinderson. He draws them personally. 

Mr. Paul. He draws the list once a year. They have two regular grand 
juries every year. They select from that list drawn by him the men to serve 
in the two grand juries, the regular ones. 

Mr. Luhring. Is that list arbitrarily made? 

Mr. Paul. No; that is by lot. 

Mr. Luhring. That is what I mean. 

Mr. Paul. But he selects the original list. 

Mr. Hudspeth. Of how many names? 

Mr. Paul. About 40. 

Mr. Hudspeth. Then you have a grand jury of 12 men? 

Mr. Paul. No ; nine. In addition to that the judge himself may- 

Mr. Hudspeth. He selects 40 names? 

Mr. Paul. l T es. 

Mr. Hudspeth. Then from those 40 men 9 names are drawn? 

Mr. Paul. Yes; for the two regular grand juries; that is twice each year. 

Mr. Hudspeth. How many men have to concur in an indictment, under that 
nine? 

Mr. Paul. The majority. 

Mr. Hudspeth. A majority? 

Mr. Paul. Yes, sir. But we have the special grand jury at the other terms, 
and the special grand jury is the one that is always called about election mat¬ 
ters ; and those men are hand picked. 

Mr. Anderson. Gentlemen, I am not a criminal lawyer, so that I have to ask 
these other gentlemen to answer these questions. But if I wanted to take the 
time, I could give you an illustration of the cases of men that had been taken 
from a regular jury and referred to a special grand jury, and tbfn a special 
grand jury never called. 

Mr. Bulwinkle. You do not mean to charge the circuit judges in Virgin'a 
with any corruption? 

Mr. Anderson. I do not mean to charge the circuit judges in Virginia with 
corruption, but I do mean to charge that there are certain circuit judges in 
Virginia—not in this particular case, but I do mean to say that there are cer¬ 
tain circuit judges in Virginia that are so partisan that you can not get justice 
before them in election cases. Y"ou can call that corruption, if you want to. I 
am not here making that argument to-day, because I suppose—of the number of 
circuit judges there—they are men that average as high as those men usually 
average. In what I am saying here I do not mean to reflect upon them in any 
way. 

Mr. Hudspeth. Suppose I file a complaint that Mr. A has violated the election 
law. Then, as I understand you, the district judge will summon a grand jury? 

Mr. Anderson. Yes; he can do it. 

Mr. Hudspeth. Y r ou make the statement that in certain instances he has failed 
or refused to impanel a grand jury? 

Mr. Anderson. I make this statement, that in one instance to my knowledge 
the grand jury investigated, and the judge took the case from the grand jury,, in¬ 
structed the attorney not to take up that case, and said that he would appoint a 
special grand jury; and he has never done it, in three years. But I do not refer 
to this particular case. I do not refer to any particular instance in which the 
judges have been guilty of any fraud. I happened to know the circumstances 
which led to this. 



16 


PAUL VS. HARRISON. 


Now, to resume: First is the registration. You will recall the conditions of 
the registration law, that the man must have paid his poll tax for three years— 
unless he came of age that year, as all the women did—and that he must have 
made his application in writing, stating his age, residence, business, employment, 
and whether he has ever voted in other places. He must make that application 
in writing. Then, in addition to that, he must answer any questions that the 
registrar may ask him as to his qualifications. Now, the constitution evidently 
meant the qualifications according to the preceding section, and I think that is 
conceded by the contestee. The record here contains any number of instances 
where the registrar has asked all kinds of questions. I spoke of one case where 
the applicant was asked what a bill of attainder was, and in the record you 
will find cases where they asked questions of the most difficult character—to 
explain the eighteenth amendment, and questions of that character. 

Now, if a man can do that, and it is done very generally throughout the State, 
and if he can ask no questions of those whom he wants to register and make 
it impossible for any person whom he does not want to do so to register he 
can do whatever lie wishes. Here are some of the questions asked: Who has 
charge of the voting places? What are the duties of the registrar? Explain 
the nineteenth amendment. How are public schools supported? How is the 
President elected? What State made woman suffrage possible? And so on. 
What is the use of saying any more? The idea of asking a man to explain 
the divisions of our Government, and explain them briefly—an ordinary person 
voting in the country. 

Then, in addition to that, there are large numbers of persons there who have 
been registered for years without making any written application whatever. 
Fraud is of two kinds, one being a violation of mandatory provisions of law 
by those charged with its execution, which is legal fraud, whatever may be 
the intent, and in addition to that there may be actual fraud with intention to 
commit fraud—malum in se, where the whole thing is wrong. Now, it is 
immaterial whether these people were intending to do wrong. You can only 
infer their intent from what they did. Assuming that they intended the 
natural consequences of their acts, you can only reach one conclusion, and that 
is that they intended to defeat the election of the contestant and maintain the 
control of the dominant party. In judging of their intent you can judge from 
the context. 

It is contended, further, that the law as to registration, the constitutional pro¬ 
vision, is directory and not mandatory, and therefore the violation of that law, 
it being directory, makes the election merely voidable and not void, and since 
the statute provides for methods of purging the poll books of persons illegally 
registered, it being voidable, that was the only available remedy, and it not 
being availed of until after the election that it can not be attacked at this 
time. You #?e the force of their contention. 

On the other hand, we contend that the provisions of the statute are man¬ 
datory, and that unless they are complied with the registration is absolutely 
void, ab initio; that they are essential to jurisdiction by the registrar, and 
unless a written application is made then the registrar has no jurisdiction, and 
it is just like the case where a court has no jurisdiction of a person—the judg¬ 
ment of that court is void ab initio and you do not have to set it aside. We 
have cited on that a number of authorities, including Cooley on Constitutional 
Limitations and others, laying down the universal doctrine that all provisions 
of a constitution are supposed to be mandatory; that the constitution is the 
most solemn of all instruments, and it will be deemed to be mandatory unless 
it be in some matter of the most immaterial character relating to the method of 
doing the thing and not the essential elements of doing the thing, and that the 
provisions of a statute which relate to the essentials are always deemed 
mandatory. 

What would be the result of any other conclusion? I suppose it will be 
admitted here that if the Legislature of Virginia undertook to pass a law 
providing that no person had to make out an application to register in view of 
this constitutional provision specifying what the application must be that 
would be void. 

If the registrar can disregard that provision and register people without 
their having made written application, then a partisan officer, appointed by an 
electoral board, as these gentlemen say in their brief often an ignorant man, 
can set aside the constitution of Virginia, which the legislature can not set 
aside. Of course the thing is ridiculous on its face. 


PAUL VS. HARRISON. 


17 


A\ c find that in addition to these general decisions holding that these provi¬ 
sions m the constitution are mandatory, we have decisions in our lower courts 
to the same effect. A I told you, in these local cases the statute provides 
that there shall he no appeal to the Supreme Court of Virginia. There is no 
printed record in the lower courts. 

Now, what happened? You will find that in the circuit court of Nansemond 
: Judge McLemore one of the ablest judges in the State, when this came 

beroie him, held in terms in the local election cases—there had been cer- 
tam persons registered and voted who had made no written application to 
1 egister and Judge McLemore held—that the constitutional provision was 
obviously mandatory, and that the provision as to the purging of the poll 
books had nothing to do with it, because if it was mandatory the registration 
v as absolutely Aoid; and it was jurisdictional. He used that word, that the 
legisti ai had no jurisdiction of the voter who des red to register, or the Ques¬ 
tion of registration, until the appl’cation was made and then lie could ask 
additional questions concerning h s qualifications. 

'I'heie ^ as a decision in the corporat on or city court of Lynchburg, by 
Judge C hristian, which is set out at length in the brief of the contestee, in 
v hich Judge ( hristuin stated that he regarded these provisions as only di¬ 
rectory, and he would not regard the vote of the voter as void. That decision 
was made before Judge McLemore’s decision and was brought to Judge Mc- 
Lemore’s attention, and he refused to follow it, on the ground that it was 
absolutely a mandatory provision of the constitution. 


Now, after Judge McLemore’s decision, we then have a decision by Judge 
Barksdale. All these judges are Democratic judges. Judge Barksdale, was in 
one of the southern circuits and he rendered this decision in which he refused 
to follow Judge Christian and followed Judge McLemore’s decision, and held 
that the registration of voters without written application by them was abso¬ 
lutely void, ab initio, and the votes of those persons must be thrown out. Judge 
Barksdale in that decision holds that he has already decided that question 
before, in that way. We have these three decisions. 

Then Judge West, now on the supreme court, when he was circuit judge, 
in a Princess Anne contest, of Simmons against Lamb, following Judge Mc¬ 
Lemore’s decision, held that it was mandatory, and that the registration was 
void ab initio unless there had been applicat on for registration. 

Mr. Rose. Do I understand you to say that some judges have held that the 
provisions of the constitution are not mandatory? 

Mr. Anderson. One judge, in the corporation court of Lynchburg. These 
were local option cases involving the question of licensing barrooms; and 
while I do not mean to say that the judges would be influenced by those con¬ 
siderations, they are facts in the case. 

Before we had the present prohibition law, we used to have local option in 
Virginia and these were all local-option cases except two. 

But as I say, we have these four decisions in Virginia, one of them by a 
judge now on the supreme court, who has held that registration without 
written application was void ab initio. 

The Chairman. Have you found any decisions outside of Virginia holding 
that a provision of tht Constitution can be under any circumstances directory? 

Mr. Anderson. There are some decisions to that effect concerning very minor 
provisions of the constitution; but, as Cooley says in his constitutional limita¬ 
tions, they are of doubtful validity, and that generally speaking all provisions 
of a constitution should be held to be mandatory. Cooley discusses the whole 
subject. I will not take time to read it to the committee, because I am stating 
what the decision is; and you will, of course, read it in the brief. Therefore, 
I would not have believed it to be capable of argument that a provision lying at 
the very basis of the electoral system of the Commonwealth of Virginia could be 
set aside by the registrar. If that is true, you need not hold an election, but 
these election officers can just return whomever they want to; and that is what 
they do, anyway. So much for the situation of the registrar. 

What is the result? I have not referred to the names of these cases because 
they are set out in the brief, and I have not time to stop to read it. It is con¬ 
tended here, first, that the provision is directory, and that the remedy was to 
purge the registration books. The statutes of Virginia provide that if it is 
found that there are any names on the registration books improperly, any per¬ 
son objecting can purge those books by giving notice to the persons concerned, 
and then proving that they are there improperly, and striking them off the 
rolls. * 


93942—22 


-2 



18 


PAUL VS. HARRISON. 


Mr. Luhring. Do you mean, now, the registrar? 

Mr. Anderson. Yes; the registrar. And you have an appeal from the registrar 
to the court of appeals. 

Now, these registrations complained of here are almost universally of women. 
The books close 30 days before election. The registrars are obliged to return 
a list of the persons registered to the clerk’s office for examination. In the 
counties complained of—Albemarle, Frederick, and Clark—they made no such 
return, and there was no way for the contestant to know if these people had 
been illegally registered, until he investigated. As a matter of fact, he found 
a large number of illegal registrations when he began to investigate, which were 
not contained in the original notice. 

Mr. Luhring. When did the registration books open? 

Mr. Anderson. The registration books are supposed to be open at all times in 
some counties. In others, they will not accept registrations except on registra¬ 
tion day, 30 days before the election. As a general thing, they receive them 
from people who go there to register up to within 30 days of election. Then 
they are supposed to send the list to the clerk, and if you find people illegally 
on the list, you can under certain circumstances make an application to have 
them stricken off. 

Mr. Bulwinkle. Do you have the right of challenge at the polls? 

Mr. Anderson. Yes; but it is a question whether it is a matter of much impor¬ 
tance. You have to know whether a person is on the list and you have no way 
of knowing unless there is a list filed with the clerk. In these cases there was 
no such list. 

Mr. Paul. Even then, you would not know the process by which they had been 
registered. 

Mr. Anderson. Yes; you would not know the process; and they failed to re¬ 
turn the list to the clerk’s office. 

Mr. Paul. The judge of election is bound by the books, as furnished to him. 

Mr. Anderson. That is true. Now, gentlemen, you have there a large number 
of people registered who it is admitted made no written application to register. 
In the second place, in these particular counties you have a large number of 
people registered who were given assistance in registering. I want to take up 
that class for a moment. You will notice that the constitution provides that a 
person shall make out this application to register “ in his own handwriting, 
without aid, suggestion, or memorandum.” The result is that if a person wants' 
to register, he comes into the office of the registrar and writes this application. 
The Attorney General in an opinion given after this case was- 

Mr. Hudspeth. Have you an application there? 

Mr. Anderson. I have two applications here. They give you this paper 
[indicating], and all you have got to do is to furnish pen and ink. l r ou must 
write it yourself, and no one must give you help of any kind. 

The Attorney General has held, as given in the brief of September, 1920— 
after this case was heard, he gave the opinion—that the registrar had a right 
to give a person a copy of the law to look at. Well, we will concede that a per¬ 
son has a right to look at the law anywhere, at any time; but he held that the 
registrar did not have a right to read the law to the applicant, or explain it, 
because that would be “ aid, suggestion, or memorandum.” The evidence in this 
case shows not only that a large number of persons were registered by assist¬ 
ance, but that the registrar told them what to write; which is really worse than 
not taking any written application at all. You see the result of that. The 
registrar, when a man comes in to register, tells him how to make out*his appli¬ 
cation, and there is a complete and perfect registration. If there was no appli¬ 
cation the registration is void; but even conceding it to be only voidable there 
is a complete application made by an applicant; but say that I am ignorant, 
also, and I come in also; but I am of the opposite party. The registrar will not 
give me any assistance at all. The result is that that discrimination which 
Senator Glass says was the purpose of this system, becomes more complete 
when you give assistance than if you take no application at all. 

We have therefore a large number of persons here who have registered with¬ 
out any application of any kind; and we have a large number who have regis¬ 
tered, who have been given assistance other than merely furnishing them with 
a copy of the law. We will concede for the purposes of this case that the law 
can be furnished to them. I do not want to go into that detail. 

Therefore, taking those two classes, first, those who were registered without 
application, and, second, those who were given assistance, admittedly contrary 
to the law and contrary to the*express constitutional provisions and* the result 



PAUL VS. HARRISON. 


19 


\vouR 1 be to make it necessary to throw out a large number of the precincts in 
Albemaile, Clark, and Frederick Counties, where these violations of the law 
took place chiefly; and so large a number of precincts as to change the entire 
result of the election. Giving the figures from memory, I think it was proved 
in this case that o,0S8 out of a total of 7,700 votes cast in those precincts were 
registered without application, or with assistance. 

Now, all those names are not included in the notice given originally by the 
contestant I am coining to that in a minute. They are not included because 
he did not know about all of them, but it developed afterwards in the evidence. 

Now. if the evidence developed a high per cent of the vote in any precinct 
was illegally voted, under all the authorities it seems that that precinct should 
be thrown out entirely. 

If you threw out those precincts, the result would be to give to Senator Paul 
over a thousand majority in the district. 

If, on the other hand, you threw out only those who were registered without 
any application whatever and let the others in, you would give him 414 majority. 

If you should limit him absolutely to those who were named in his notice, 
and if you did not allow him to prove as to any others, although the evidence 
is clear that they were registered illegally, it would result in sticking to the 
strict technicality of the notice; and if you then do not throw out the pre¬ 
cinct but apportion the votes, the result of that would be to divide the vote 
between the parties. Now, I say, under those circumstances, these electors be¬ 
ing all partisans of the contestee, none of them being Republicans except at 
Liberty Furnace, the entire machinery being in the hands of the opposite 
party, we have that situation developed. 

Now, they take the further position here that in some of the counties car¬ 
ried by the contestant there were also illegal registrations, and especially that 
the registration applications were not complete. Gentlemen, when you come 
to read this record, you will find that in those counties where the Republican 
majorities exist the law is enforced with great strictness. In those counties 
where the Democratic majority is overwhelming the law is not enforced at all, 
and the result, you see, is very obvious; the machinery, in both.type of counties, 
being in the hands of the opposite party. 

In the city of Harrisonburg and some of the counties it was undertaken to 
be proved that certain persons were registered without written application, or 
that certain persons were registered who did not make proper applications, 
that they did not contain all the elements povided in the constitution. We have 
not counted those at all. Suppose that were true; who is responsible? The 
registrars, representatives of the opposite party and partisans of the contestee. 
They might destroy the entire Republican majority by refusing to obey the law. 

But. in the second place, there was no notice given, we would answer, of any 
such alleged improper registration, and the evidence was taken too late for 
proper investigation. 

The Chairman. Do you contend that the contestee should be bound by hlu 
answer and that the contestant should not be bound by his answer? 

Mr. Anderson. No, sir, I do not; and in the figures that I have given you I 
have included cnly those named in the original notice, because if you are going 
to let anybody come in and prove, then the majority will be very much larger 
for contestant. But I have confined the figures to those named in the notice 
and who are clearly outside of the law, taking the minimum figures. There¬ 
fore I claim that adequate notice must have been given as to any person in 
order to allow this committee to consider it; except in this case that if the 
evidence shows an utter disregard of the law in any precinct, then the commit¬ 
tee can not seat people in the House of Representatives upon a perfectly law¬ 
less election, no matter whether there is notice of it or not. Throw out that pre¬ 
cinct on either side. 

Now we come, therefore, to the second question, which is whether an applica¬ 
tion which is defective in failing to have in it certain elements contained in 
the statute or in the constitutional provision, as for instance a man might make 
an application, stating, “My age is so and so; I have been living at such and 
such a place for two years, and desire to register”; that would be giving infor¬ 
mation. There are six particulars required in the constitutional provision. 
Now they contend that that voids the registration, if the other does. 

The view which we take of the law is this, and it is sustained by the authori¬ 
ties, in my judgment, and by reason, that the written application having been 
made—get this clear; the written application having been made—by the per¬ 
sons in their own handwriting, gives jurisdiction. Mind you, it is jurisdictional. 


20 


PAUL YS. HARRISON. 


according to Judge McLemore and the other authorities I have cited. Then 
the defects they attack being defects of jurisdiction, they can be remedied. The 
law allows these questions to be asked as to the application, and he is able to 
ask these questions in order to put the data on the book for the information 
of the clerk, and that information appears on the book. Now, if he made a 
defective application, the jurisdiction of the man, like the jurisdiction of a 
court, attaches, and those defects can be cured by a motion during the proceed¬ 
ing, and it will make a perfectly valid judgment. So that in this case the 
jurisdiction having attached, it may be voidable, but that is the full extent to 
which it can go. It might be subject to attack in a proceeding to purge the 
books as voidable; but that can not be gone beyond, because this jurisdictional 
question has been passed upon and the application filed and accepted. I hope 
I make that plain. 

Counsel take the opposite view. There are authorities you can cite on that 
ad infinitum, but the principle seems to me to be perfectly plain. 

Mr. Luhring. Have you not placed considerable discretion in the registrar 
by permitting him to take any sort of a written application? 

Mr. Anderson. You do, in that case, and it is voidable. In other words, if 
he exercises that discretion, what is clause 3 for? Clause 3 says that he shall 
answer all questions of the officers of registration. It reads as follows: 

“ Third. That he answer on oath any and all questions affecting his qualifi¬ 
cations as an elector submitted to him by the officers of registration, which 
questions, and his answers thereto, shall be reduced to writing, certified by the 
said officers, and preserved as a part of their official records.” 

What is the purpose of that? 

Mr. Rose. Of course, there could be no uniformity as to those questions, be¬ 
cause each registrar would have an absolutely different idea. 

Mr. Anderson. Absolutely; and, in my opinion, if you made a proceeding to 
purge the poll books, that would be a perfectly valid ground for a voidable 
registration. I think the law is bad. 

Mr. Luhring. In a case where the registrar gives a man aid and assistance, 
it would be, there, a voidable registration? 

Mr. Anderson. No; that is a void registration, because there he is violating 
the law when he assists the person who is applying to make his application. 
There is a void registration. He is there guilty of a legal fraud; do you not 
see that he is? He has a right to ask questions. The Constitution gives him 
that right, but it provides that he shall not give any assistance to the man 
that applies, and if he violates that constitutional provision he is guilty of a 
legal fraud, and the registration is void. 

Mr. Rose. Is it fair to presume that if six persons present themselves at the 
same time he will ask them all the same questions? 

Mr. Anderson. They are not supposed to be present at the same time; so that 
they can not give each other assistance. 

Mr. Luhring. You do not concede that the registrar has a right to ask those 
questions? 

Mr. Anderson. No, sir ; certainly not. 

Mr. Luhring. Those questions are only as to his qualifications—as to his 
residence ? 

Mr. Anderson. Yes, sir; but all sorts of questions are asked as to the voter's 
qualifications. They say that one judge asked the question, what was the aurora 
borealis. 

The Chairman. Do I understand that if the registrar gives aid and assist¬ 
ance, violating the provisions of the constitution, there is no application? 

Mr. Anderson. Certainly not, because that is a fraudulent application. 

The Chairman. In other words, the man has not made any application? 

Mr. Anderson. No, sir. Of course, he can ask questions. The law lets him 
ask questions. How far he can cure a defective application by asking ques¬ 
tions, that is a question that has not been decided. In my opinion it is void¬ 
able; but the jurisdiction attaches, and it is merely voidable, and unless you 
do attack it in the manner provided, the vote can not be thrown out. 

Mr. Luhring. Do you really believe that that was the intention of the framers 
of section 3? 

Mr. Anderson. If you ask me my opinion as to the intention—— 

Mr. Luhring. I am asking the question. 

Mr. Anderson. Whether they could remedy defective applications? 

Mr. Luhring. Yes. 



PAUL VS. HARRISON. 21 

Mr. Anderson. I do not know what their intention was. I do not know what 
the clause relates to. 

Mr. Luhking. Is there anything in the debates that shows that? 

Mr. Anderson. I do not recall anything now. These are the forms that they 
are instructed upon [indicating], and of course they are not allowed to take 
this memorandum when they go to register. 

Mr. Paul. This is what wo use to instruct our people, because we can not get 
them instructed in any other way. 

Mr. Hudspeth. Then, as I understand, where a man gives assistance to an 
applicant who desires to register, you hold that that voids his ballot? 

Mr. Anderson. It voids his registration so that he is not entitled to vote. 

Mr. Hudspeth. But you do not hold that it does void the election at that 
precinct ? 

Mr. Anderson. It does not, unless so large a proportion of the people are 
illegally registered as to make it not an election. 

Mr. Luhring. But you would let that vote go, proportionately? 

Mr. Anderson. Yes. But suppose two-thirds of them were so registered; 
that would show such an utter disregard of the law as to make it not the expres¬ 
sion of the will of the people of that precinct. As Judge Barksdale held in 
Stokes v. Hatchett, that would be an absolute mandatory provision. He threw 
out the precinct. Instead of a ballot box they had there a cigar box, and they had 
the ballots in that; and they went to lunch and put this box on the table, in full 
sight of everybody that came into the room, and they prepared ballots and voted 
there and threw the ballots all over the place. That was in a contest for the 
clerk’s office. That was held to be not an election. 

The Chairman. You have used almost an hour and a half of your time. 

Mr. Anderson. Yes; I have got to hurry on. I am trying to cover these other 
points as quickly as I can. 

The second point is on the question of poll-tax payment. You will observe, as I 
pointed out in the beginning, that the law requires the payment of poll taxes 
three years in advance where a man does not come of age that year. He must 
pay the poll tax six months in advance for three years. If he pays it within 
the six months he can not vote. If he overlooks the payment until after the 
time, and it is one day within the six months, under the constitution he can not 
vote. 

Now, all those persons who have paid poll taxes within six months before the 
election are required to be certified by the treasurer who receives the poll tax 
to the clerk of the court; and the clerk makes out a list from that certified 
statement and posts it at every precinct in the county, of the persons who have 
paid poll tax in the precinct. 

Then, on election day that poll-tax list is in the possession of the judges of 
election, and they take that list. It is provided by law that that list shall be 
proof of the facts contained in it. 

But obviously there are three classes of persons that can not be on that list— 
persons transferred from one county to another, who have only been one yeaj* 
in the county and have paid their poll taxes in some other county, they can vote 
on the certificate of the treasurer in that county. 

Second, persons coming of age after February 1, being the day on which the 
poll tax is assessed. They can register, but they can not be on that list. It is 
made up from the treasurer’s statement, and he will not have them five months 
in advance. 

Third, in some counties in Virginia it has been the law—so held by the circuit 
court, but now reversed by the Supreme Court since this case has been pending— 
for the treasurer to refuse to put anybody on that list who has not paid three 
years’ poll tax. Therefore a man who came in here one year and paid his poll 
tax and paid his poll tax next year would not have been on that list, and he 
would not have been on the list until the third year. The Supreme Court held 
that that was wrong, but the court of Rockingham has refused to put anybody 
on the list and treats those who have not paid three years’ poll tax as if they 
did not belong on the list. 

Then, also off of that list, you have old soldiers who are exempt from any 
poll tax; second, persons coming of age since February 1; third, any persons 
who would not, under the method of making up the list up to the time this case 
was brought—in Rockingham County, for instance—be entitled to be put on the 
list. They would be off the list. Therefore, they would have a vote on proof 
of their paying taxes, and the registration books would show the old soldiers 
exempt. 


22 


PAUL VS. HARRISON. 


Mr. Luhring. Can you cite that Virginia case? 

Mr. Anderson. Yes; that is in the contestee’s brief. It is since this case 
came up. It had been held by the circuit court, but not by the supreme court 
of appeals, that the method of making up the list was right. 

Now, you will see that when they came to vote the question would be, first, 
if a person was on the list, if he belonged on the list; and if the registration 
books showed that he was not on the list, according to the method of making it 
up, then you would have other proof. 

Now, there has been a question whether, if a man was omitted from that list, 
he could vote on his poll-tax receipt, supposing that he was omitted by a 
clerical error. In many jurisdictions they have been voted. In other jurisdictions 
it lias' been held that they can not vote. The law gives them the right to 
vote, and the question is, is a man going to be denied the right to vote because 
the treasurer omitted his name from this list, it might be willfully or it might 
be accidentally. That question has never been decided. In this case, wherever 
the contestant came across a name of a man who the evidence showed had 
paid his taxes, he asked for no further proof, but omitted that from the 
claim of the illegal votes. 

Now, when you come to the other classes of these votes, you must bear in 
mind all the time the method of making -up the lists in the various counties. 
It varies in the different counties. If a man’s name was on the list the law 
provides that that is proof he paid his tax. If it was not on the list but ought 
to have been on there, and he proved he paid his tax, that eliminated him from 
the illegal votes. 

In the third place, if he was not on there and ought to have been there, we 
inquired whether he belonged to the classes that ought not to have been on 
there, namely, old soldiers, those who have come of age in the year, and so 
on, so as to arrive at a correct result. There are pages and pages taken up in 
this record on the question of poll taxes. The contestee undertook to prove that 
a lot of people voted in these counties carried by the contestant who had not 
paid poll taxes. No notice was given of any county, and they have undertaken 
to take this proof at the very conclusion of his evidence, and no investigation 
could be made complete; but they had 256 names that appeared in evidence; 
and taking the proofs that could be found, in the concluding evidence it brought 
it down to only 22 cases unsettled, and of those, two were Republicans, five 
Democrats and seven doubtful, so that it is a very small matter. 

Now, the contestant proves here, eliminating all doubtful questions and taking 
only those cases that were admitted that they did not pay their poll taxes, 
some of the most gross outrages and violations of the law have been shown 
here I ever saw in my life. Five professors of the University of Virginia 
voted who had not paid their poll tax. Can you conceive of such a thing? 
That is a mandatory provision of the law, and they voted without paying 
their poll tax. 

Taking the memorandum of the votes that must be thrown out, it would give 
the contestant here a majority of 65. It. would cost the contestee 65 votes and 
give the contestant that number. So much for the poll tax. 

Now, I want to come to the last, provision here which I can only run over 
hurriedly, as to the method of conducting the elections. 

Mr. Chairman and gentlemen of the committee, I am sorry I have not the 
time to go into this question, because you are investigating now something that 
goes to the very foundation of the political system of the Commonwealth of 
Virginia. In so far as it affects the elections in Virginia, that is our business; 
and if we have not got the power to change it we will have to endure it until 
we can change it, until the people can get better government by their own 
action, because that is our theory of government. This was put upon us by the 
vote of 47 men, but we have to remedy it in Virginia. How long it may take, 
I do not know. It is not a partisan question; it is a question of a republican 
form of government. 

Here is this man, the contestant, who went over to the other side although 
he was exempt from military service, and fought in the Argonne Forest to main¬ 
tain the purity of government and the rights of mankind, and to make the 
world safe for democracy. He comes back to his own country and finds this 
sort of thing existing in his own home—five members of the faculty of the 
University of Virginia voting without having paid their poll tax. So far as the 
Virginia elections are concerned, we will have to handle it ourselves, but so 
far as this House of Representatives is concerned, we are entitled to have 
these laws you have put here, at least, enforced. This electoral system would 


PAUL VS. HARRISON. 


23 


be a denial of free government itself. It is a denial of that. It denies every¬ 
thing that we fought for in this war and everything Jefferson was supposed 
to stand for at the University of Virginia on the record. But, notwithstanding 
that, we are at least entitled to have those laws enforced, to the end that our 
representation in Congress shall not be polluted by legal fraud, at least what¬ 
ever may be our fate in our own State. 

Now, there are the following violations of the law: The failure to have Re¬ 
publican judges. You would think that even under an election system devised 
for the purpose of discrimination, as was declared by the present Senator of 
the United States who drew it, they would at least give you one election official 
out of six or eight, would you not? Now, at every important precinct here 
where these irregularities took place there was no Republican judge. They 
would appoint some person that they called a Republican, but he was easily 
controlled. The law says that if possible you must have a Republican judge. 
They say they could not find any, Take the returned vote here and say whether 
you believe, precinct by precinct, you could not find a Republican to serve, 
when all these people would go there and vote the Republican ticket and be 
returned as voting. 

A second thing is the failure to furnish booths. They failed to have booths, 
and a man came in and he would make out his ballot on the table and the 
judges would assist him; it was a regular town meeting and frolic; and yet 
the law says that the secrecy of the ballot must be preserved, and that there 
can be no assistance given to any voter; and they must have booths so that 
the judges can not see the person making his ballot in there. Now, that was 
the way they conducted the election at those precincts. 

The next thing was the assistance to voters. I have already pointed out that 
if you can register ignorant voters that are friendly to you, and then vote them 
by coming in and giving them assistance in the booths, what is the restraint 
upon the election? All you have to do is to have the judges appointed and 
you can return anybody you want to. They even went back of the returns to 
find out how much they did want. They did that in Albemarle County in this 
case. The record shows that in three precincts in Albemarle County and in 
the city of Winchester, one of the most intelligent communities in Virginia, one 
of the judges went into the booths and assisted them in preparing their ballots, 
and bystanders were freely allowed to do likewise. 

Mr. Hudspeth. I understand you to say that in Winchester they had Re¬ 
publican judges in every ward; is that true? 

Mr. Paul. There were two nominally Republican judges there. One of 
those judges had been a participant in the Democratic primary two months 
before that. They were called Republicans. 

Mr. Hudspeth. We have a good many people in Texas who claim to be Demo¬ 
crats all the time, who voted the Republican ticket at the last election—50,000 
of them. 

Mr. Anderson. You would not want them to act as judges for you in your 
election, would you? 

Mr. Bulwinkle. I notice from the contestant’s proof that in the city of Win¬ 
chester, Harrison received 770 votes and Paul 690 votes; and that is the place 
you say they assisted the voters to mark the ballots? 

Mr. Anderson. They did. 

Mr. Bulwinkle. They voted for contestee, did they? 

Mr. Anderson. I do not know how they marked them, but the judges of 
election marked them. 

Mr. Bulwinkle. I understood you to say that they made a regular frolic 
of it. 

Mr. Anderson. Now, when you come to the question of assistance, any per¬ 
son registered prior to January, 1904, was entitled to assistance. Whether 
that is right or wrong, the constitution so provides. That is the permanent 
list, but you will find they made no discrimination between the permanent and 
the’ temporarv lists. They did not pay any attention to a tax. There was no 
tax paid. In addition to that, they had been assisting everybody, indiscrim¬ 
inately. 

In the convention Mr. Braxton, one of the ablest of our lawyers—he is now 
dead—one of the leaders of the convention made this statement, which I think 
is sufficient argument on that question [reading] : 

“ By permitting a man who can read to have assistance in the preparation 
of his ballot you throw the door wide open to practices of fraud, and you fail 
to avail yourself of a well-known and thoroughly tried experiment that can 


24 


PAUL YS. HARRISON. 


work no hardship upon any man by saying to him that if he is able to fix it 
himself you will not allow T anybody else to fix his ballot for him. No man who 
is registered after 1904 can receive any assistance, whether he can read or not, 
unless he is blind or physically disabled from the preparation of a ballot. I 
propose that the only difference between the members of the present electorate 
and those of the future electorate shall be that the man of the present elec¬ 
torate shall have assistance if he can not read, but if he can read he should not 
have any assistance in the preparation of his ballot any more than the mem¬ 
bers of the future electorate shall have that assistance.” 

In other words, he points out the very evil that the constitution intended to 
avoid. 

Now, all of these matters are enumerated in detail. Let me take one pre¬ 
cinct, Scottsville, on the James River, in Albemarle County. Practically all 
of this proof is taken from Democratic election officials, because we had no 
Republican election officials, and we had to question the Democratic election 
officials to prove the contestant’s case. The judges of election testified down 
there that they found that the registration books were all mixed up and they 
could not use them, so that they did not bother with the registration books. 
Then they found the poll-tax lists incomplete, and they did not bother with 
those. Then they said that George Robinson, who was a Democratic worker 
and who was deputy treasurer for the precinct, was outside in another room, 
and whenever they had a doubt about whether a man should vote or not they 
called George Robinson, and if he said he could vote, all right; and if not they 
let him go. The evidence is all there. I will not go into detail. 

Now, about marking the ballots. At Colesberg, I believe, a judge said if 
he found out a man was not going to vote right he did not mark his ballot. 
He thought that these requirements in the election law were a lot of fool 
rules, anyhow. I think so, too, but at th same time we are entitled to have 
them for what they are worth. 

The constitution says that the ballot box shall be kept in the public view. 
There were election precincts here where the voters had to go upstairs to vote. 
They had a -way of marking the ballots called an endless chain. 

Mr. Luhring. Was there any proof of the use of the endless chain? 

Mr. Anderson. Not in this particular case, but that is where a man goes 
outside and goes away with the ballot and comes back with another ballot; 
that is the endless-chain system. 

Now, as to the failure to destroy unused ballots. That is one of the worst 
points in this case. In many of these precincts they not only did not destroy 
the unused ballots but they left them in the charge of people who were not 
election officers, who brought them to the clerk’s office along with the used 
ballots, with the ballot box. What happened? As stated in the United States 
Supreme Court in the Coy case, the purpose of this law is to prevent the 
election from being controlled by some one who can control it. Now, if you 
will give me the unused ballots and the ballot box and leave the ballots un¬ 
sealed I can give you the election any way you want it. I do not have to 
bother with anything else at all. Is not that perfectly obvious to anybody? 
They not only returned these ballots without destroying the unused ballots, 
but they went further and returned them by persons who were not election 
officials and were not sworn to uphold the ballot. 

The ballots in Albemarle County were distributed not by an election official 
at all, but by the deputy clerk of the county. The law says they shall be 
distributed by the clerk of the electoral board. And they were delivered not 
sealed. Can you imagine anything of that kind in an election? I say that you 
are bound to throw out the entire county of Albemarle. They had tampered 
with the entire machinery of the ballot, the most sacred thing in it. They 
had put it into the hands of a person who was irresponsible, a worker for one 
of the parties, who delivered it to the judges of election unsealed. Then he 
take's it. They keep the ballot box out of sight. They vote anybody they see 
fit, registered and unregistered. They give any assistance they see fit to 
voters, register them as they see fit, and then they return the unused ballots 
to the clerk’s office in the charge of some one who was not an election officer. 
It gives them every opportunity to add 500, or any amount needed, to the 
returns of the vote in that county. Now, where that opportunity is given, 
as the Supreme Court says, whether it is availed of or not, it invalidates 
the entire transaction, and ought to invalidate the entire transaction. 

Mr. Hudspeth. Have you any case where men stated they voted for a cer¬ 
tain individual and he did not receive that number of votes at that precinct? 


PAUL VS. HARRISON. 


'25 


Mr. Paul. No, sir; we have nothing of that sort. 

Mr. Anderson. Now, the uncounted ballots. There is not a pretense that 
anybody was called in to see the count. The ballot box was opened by the 
judges, without destroying the unused ballots. 

In many places the judge regularly assisted the voter in making out his 
ballot. In some cases the judge opened a ballot after it was handed him to 
see how the voter was voting. 

Now, I am running over these things hurriedly. There is the failure to 
string the ballots. The law requires that the ballots shall be strung and 
returned to the clerk's office. They did not string them at all. They just 
threw them in the ballot box with the pod books and with the unused ballots, 
and returned them to the clerk. 

Mr. Luhrino. Is this sample ballot the size of rhe real ballot? 

Mr. Anderson. Yes. It takes an expert to vote that ballot. 

Then there was the failure to seal the nallot box. They did not seal the 
ballots, but left them unsealed and returned them with the ballot box. 

Mr. Chairman, those conditions prevailed in Albemarle and Charlottesville 
and Clarke and Frederick, In the city of Winchester and at Mount Craw¬ 
ford ; more or less of those conditions. The evidence is summarized in the 
reply brief as to each precinct we think ought to be thrown out. Therefore, 
in those precincts in which there were those gross irregularities, not only 
violations of law but of constitutional provisions, we contend that Senator 
Paul had a majority of 1,353 votes. In my judgment, and I say it with due 
recognit on of the reluctance of people a pci of courts to deny to people the 
right to have their ballots counted, in the light of this record the entire county 
of Albemarle was illegal from top to bottom, and while they deny fraud, 
the evidence is conclusive of fraudulent intent—such an utter disregard of 
the law by men who had been election officials for four years—and we say 
that the ent re county of Albemarle should be thrown out, and the city of 
Charlottesville. 

But taking only the precincts in which these gross irregularities occur, 
disregarding the fact that the ballots at the election were distributed by men 
who had no more legal right to do it than I had, you still have a majority 
for the contestant of 1.353 votes. If you add to that the persons who were 
clearly void registrations In other precincts; in other words, those precincts 
show an utter disregard of the law from the very moment of the registration 
down to the return of the ballots. They were thrown out, but taking those 
other precincts that were not thrown out and adding those, it will give you 
103 additional votes, adding which to the former total you would have 1,510 
votes in this election. I wish I had time, and your patience would permit it, 
so that I might go in detal through some of those precincts. It is appalling. 
There is nothing else to be said about it. It is humiliating to have to review it. 

As Senator Paul renrnds me, in some precincts the unsealed ballots were 
left in the hands of a man who was not an election official at all. 

Mr. Paul. And for 30 hours afterwards. 

Mr. Anderson. As far as I can see, the authorities follow common sense, 
in saying that an election is not an election unless it is an expression of the 
sentiments of the people of the county. As the judge of the Supreme Court 
so well said, the secrecy of the ballot is the tlr'ng that lies at the very founda¬ 
tion of all action, and unless that can be preserved, and properly preserved, 
then there is no election, and there can not be in every case. 

Gentlemen, as I said before, this case means something more than the seat¬ 
ing of one gentleman and the unseating of another, or the reverse, as the case 
may be. Senator Paul has fought for his country hard enough not to want 
to ’represent it in the halls of Congress unless he is elected. He does not 
want it. But he does claim the right to represent the people that he was 
chosen by, and he does respect the obligation attaching to every citizen of 
the commonwealth of Virginia when conditions of this kind exist, to try and 
remedy those conditions with the same earnestness and the same sacrifice 
that he would fight to uphold the flag of this country upon foreign soil. The 
time has come when we have got to remedy these things in Virginia, if we 
are ever to make progress. 

So far as the State is concerned, as I say, we must remedy that condition 
ourselves, and in course of time we will. But so far as this House of Repre¬ 
sentatives is concerned, we come here not only to ask as a right that this 
wrong be remedied, as we see it, with all possible respect to the contestee, 
which we not only protest but have, but we come here out of a sense of duty, 


26 


PAUL YS. HARRISON. 


to ask this committee and the House to at least place the sources of our 
representation in the House of Representatives on the basis of respect for 
the law and for justice and for right; and however bad that law is, until 
we can change it, give us at least the benefit of the law as it may exist. 

The Chairman. Gentlemen of the committee, what time shall we reconvene? 

Mr. Luhring. At 2 o’clock. 

Mr. Bulwinkle. Let us say half past 2. 

Mr. Luhring. Very well. 

The Chairman. At half past 2, then. 

(At 1 o’clock p. m. the committee took a recess until 2.30 o’clock p. m.) 

AFTER RECESS. 

The committee reconvened at 2.30 o’clock p. m., Mr. Dallinger presiding. 

ARGUMENT OF WILLIAM MEADE FLETCHER, ESQ., OF SPERRY- 
VILLE, VA., ON BEHALF OF CONTESTEE. 

The Chairman. You may proceed, Mr. Fletcher. 

Mr. Fletcher. Mr. Chairman and gentlemen of the committee, I will not 
indulge in any political speech with reference to the Virginia election laws, 
but I will endeavor to confine myself to the facts in this case, in order to 
determine whether or not there has been a legal and proper election, and 
whether the contestant or the contestee is entitled to a seat in this Congress. 

So far as the constitution of Virginia is concerned, the only thing that 
I will say in respect to it is to call attention to what was said concerning it 
in 1908, six years after its adoption, by one of the most eminent and dis¬ 
tinguished Republicans in the State of Virginia, who said, on October 17, 
1908, in introducing President Taft, who was then running for the Presidency, 
the following: 

“ The reason urged for the constitution of 1902 was that the adjustment 
of the problems which that instrument sought to settle would leave the people 
of this State free to divide upon economic questions, and thus increase the 
influence of Virginia in national affairs and promote the political and indus¬ 
trial progress of her people. The adoption of this constitution was the last 
step in the work of 40 years, which has placed the institutions of this State 
upon a sound basis, has assured the supremacy of intelligence in our govern¬ 
ment, and has opened to the people of all races and all classes the opportunity 
to reap and enjoy the rewards of good citizenship.” 

Gentlemen, those are the utterances of the man who has told you to-day that 
there has not been a legal election in Virginia for 20 years. Those are the 
statements of the man who would have you believe that every Congressman 
from Virginia, including the nine Democratic Congressmen and Mr. Slemp, 
the Republican Congressman, are mere de facto officers and not legally elected. 
Those are the statements and utterances of the gentleman who would have you 
believe that of all the Congressmen elected in Virginia since 1904 not one has 
been validly elected; that we have not had a legal governor, a legal legislature, 
a legal judge, and that no man in the State of Virginia who has held office has 
been otherwise than only a de facto officer. With those statements in regard 
to the constitution of Virginia I will now proceed to discuss the facts in this 
case and the statements in reference to the political machinery in Virginia. 

In the brief it is stated, on page 3, that— 

“The seventh congressional district at one time was Republican.” 

Gentlemen, I absolutely deny that statement. At one time in Virginia there 
was a seventh congressional district, composed of different counties from those 
which compose the present seventh congressional district, but I say to you 
unhesitatingly that at no time has the present seventh congressional district 
ever been Republican, and the only time when a Democrat has failed of a 
large majority was in 1920, when, owing to a political fight, a primary fight, one 
of the most bitter and intense that was ever known in the State of Virginia, 
where Col. Leedy advocated the modification of the Volstead Act and Judge 
Harrison represented the dry cause, many Democrats were alienated from the 
Democratic Party, and although they participated in the primary, when the 
election came along they either did not vote or voted for the contestant in this 
case. That statement, gentlemen, is borne out repeatedly by the evidence of 
various witnesses and clerks of courts of practically all the counties, and refer¬ 
ence is made to the pages of the record on which those statements in the brief 
can be found. 


PAUL YS. HARRISON. 


27 


Now, in 1921 the seventh congressional district, so far as being Republican 
nr nearly Republican is concerned, went overwhelmingly Democratic, and the 
majority of Mr. Trinkle over Col. Anderson was approximately 4,500 or nearly 
5.000. Not a single member of the legislature was elected in 1921 who was not 
a Democrat. So, gentlemen, I think I may say, and say truthfully, and say 
without contradiction, that the seventh congressional district is not a Republi¬ 
can but is a Democratic district. 

But let us look and see how that district is composed. Shenandoah is Re¬ 
publican. Rockingham, from which Senator Paul is now the senator, is Repub¬ 
lican. Page is Republican. Greene is Republican. Madison is very close. On 
the other hand, Rappahannock, Albemarle, and Clarke are Democratic, and 
Frederick County and Winchester City are close. If the Democratic Party 
had had control of the machinery how do you account for the fact that of the 
10 counties composing that district 5 of them are Republican? 

Now, so far as the Democrats having control of the election machinery is 
concerned, as Col. Anderson said, the preliminary step in the Democratic ma¬ 
chinery consists of the appointment of the electoral boards by the judges. An 
attack upon the electoral system or machine, as they term it, of Virginia, is 
an attack upon the judiciary. Col. Anderson in his argument this morning 
stated that he did not accuse any judge in the seventh congressional district of 
being guilty of any impropriety other than appointing Democratic electoral 
boards; but in the brief it is stated that the judges who appointed these elec¬ 
toral boards were in every instance partisans of the contestee. Mr. Anderson’s 
statement does not jibe with the statement in the brief. 

Now, let us see what is the evidence in regard to these judges who appointed 
these electoral boards. In the first place, all of the judges were proven to be 
Democrats, but not a single one of them was shown to be a partisan or to par¬ 
ticipate in Democratic politics. The judges of Virginia are elected by the legis¬ 
lature. As Col. Anderson said, they practically hold life tenure, and for that 
reason they are practically independent of political questions. They do not 
have to go before the people in order to be elected, and therefore they are as far 
removed from politics as it is possible for a judiciary to be. 

Now, to illustrate the inaccuracy of the statement which is made by counsel 
for contestant in respect to all these judges being partisans of the contestee. 
in the county of Rappahannock the electoral board is appointed by a judge 
who has two other counties in his district which are not in the seventh con¬ 
gressional district but in the eighth congressional district, and the judge of 
that district resides in Warrenton and could not be a supporter of the con¬ 
testee. 

The only judge whom they have attacked in the brief is Judge A. D. Dabney, 
judge of the corporation court of Charlottesville, one of the ablest judges we 
have in Virginia and a man who was prominently mentioned for the vacancy 
in the supreme court recently caused by the death of Judge Saunders, formerly 
a Member of this body. It is stated on several pages of the brief that Judge 
Dabney admitted that he was a partisan Democrat. Now, in regard to that I 
would like to state that the record specifically shows that Judge Dabney, in 
saying that he was a partisan Democrat, did not mean, as the contestant in his 
brief would have you believe, that he would prostitute his office for political 
purposes. The circumstances which led to Judge Dabney making that state¬ 
ment were these, as is shown by pages 1838 and 1839 of the record. On cross- 
examination, Mr. Duncan Curry asked Judge Dabney these questions (Mr. 
Curry is attorney for Mr. Paul) : 

“ Q. Under any circumstances, would you vote for a Republican against a 
Democrat? 

“ Mr. Walker. Counsel for contestee objects to this question as incompetent 
and irrelevant. 

“A. I might. 

“Q. It is very improbable, though, isn’t it?—A. I don’t imagine it any more 
improbable than that you would vote for a Democrat under any circumstances, 

Mr. Curry. . _ .. 

“ Q. Judge Dabney, I am a Republican partisan. Are you a Democratic par- 

tisan?—A. I think I am, Mr. Curry; yes, sir.” _ 

Then again, on page 1841, reference is made to certain opinions by Judge 
Dabney concerning persons who voted on tax receipts, although their names 

were not on the treasurer’s poll-tax list: . _ . 

“ Q. Were you giving these opinions in the capacity of judge of the corpora¬ 
tion court of Charlottesville or in the capacity of a partisan Democrat?—A. I 


28 


PAUL VS. HARRISON. 


have never given any opinion, sir, in the capacity of a partisan Democrat. 
You know perfectly well that I wouldn’t undertake to give any opinion that 
would in any way be partisan. I want you to understand that. 

“ Q. You understand, however, Judge, that these opinions you delivered were 
absolutely unofficial and had no more binding effect than the opinion of Mr. 
George Walker?—A. I told them so at the time.” 

And again, on page 1842: 

“ Q. As judge of the corporation court of the city of Charlottesville, was any 
motion made by the treasurer or clerk, or any person omitted from the poll-tax 
list to have his name put on the poll-tax list?” 

In answering that question, he says this: 

“I want to say this: You have intimated that because of the fact that I 
am a Democrat that possibly my opinions are biased by that reason. I hope 
you understand—I know you didn’t mean to imply anything personal. 

“ Mr. Curry. Nothing whatever. 

“ Judge Dabney. And I want you to understand that I don’t take it as such 
at all. But I want you to understand perfectly well that nothing of that sort 
would influence my opinions. The mere fact of my being a Democrat would 
not influence me at all in giving my opinion on a legal question. I could give 
just as good and just as fair an opinion that was detrimental to a Democrat 
as one beneficial to him.” 

That Judge Dabney was not a partisan and he did not use his office for politi¬ 
cal purposes is especially shown by his attitude when J. B. Andrews, a member 
of the electoral board at Charlottesville, told him that he intended to vote for 
Mr. Harding and Mr. Paul, which will be found on page 361 of the record : 

“ Q. You wouldn’t say that Mr. Andrews wasn’t a Democrat prior to the gen¬ 
eral election, would you?—A. No, sir. 

“ Q. Of your own knowledge, you don’t know whether or not he voted in the 
primary?—A. No, sir. With regard to this conversation in the clerk’s office 
the gist of the conversation was to this effect: He advised Judge Dabney that 
he expected to vote the Republican ticket at the coming general election, and 
that if the judge thought proper he would be relieved from the board. The 
judge told him it made no difference what ticket he voted and requested that 
he continue to act as a member of the board.” 

Does that look like Judge Dabney was a partisan Democrat? 

But, gentlemen of the committee, the judiciary of Virginia needs no defense 
at my hands. They are as clean and high-toned body of men and as far re¬ 
moved from politics as any body of men who can be found in the United States. 
The judiciary appoints the electoral boards, and a no more nonpartisan body 
could be found to appoint them. 

Let us consider next the electoral boards, which is the second step in the 
so-called great conspiracy on the part of the Democratic Party to steal the elec¬ 
tion, to defraud the contestant, and do anything which the distorted imagination 
and the political nightmare of the contestant might conjure up. Let us con¬ 
sider what ground of complaint can be had against the electoral boards of 
the seventh congressional district, whose functions are to appoint the judges 
and clerks of election, and to appoint the registrars. 

There is not a scintilla of evidence in this case attacking the integrity and 
high standing of the electoral board of any county. On the contrary, there is 
affirmative and uncontradicted proof to the effect that the electoral boards are 
composed of the best, the leading, and the most highly, respected citizens of 
the county or city. The only attack which can be made upon them, then, is on 
account of their actions. It is admitted that on the electoral boards of Page 
and Rockingham Counties there was a Republican member. If there was any 
complaint to be had in respect to the electoral boards of those two counties, both 
of which counties the contestant carried by a large majority, would he not natur¬ 
ally have called Republican members of those electoral boards to testify to the 
conduct and attitude of their Democratic colleagues? But he did not. There¬ 
fore, we can assume that he was satisfied with the conduct of those two boards,, 
in appointing judges and in appointing registrars. 

There is no evidence whatsoever in this case in respect to the personnel 
of the electoral boards of Madison County or of Warren County. Therefore, 
we can assume that the contestant was satisfied with the constituents and 
personnel of those boards. In neither county did he make any complaint in 
regard to their conduct in respect to the election. 

Let us take the electoral board of Rappahannock County. Let us see what 
was the partisan character of that board. It appears without contradiction 


PAUL VS. HARRISON. 


29 


that the electoral hoard of Rappahannock County appointed Republican judges 
at the lequest of Mr. .T. Browning Wood, and in every wav conipl ed with his 
wishes. 


The Chairman. Who is J. Browning Wood? 

Mr. Fletcher. .T. Brown big Wood is chairman of the Republican Party in 
Rappahannock County. 


It also appears that a few days before the election Mr. Wood requested that 
Mrs. George Barnett be appointed a Republican judge at Flint Hill, and that 
request was acceded to. It also appears that two of the three members of the 
electoral board of Rappahannock County voted for Mr. Harding, and openly 
so stated. Certainly there can be no complaint in reference to the electoral 
board of Rappahannock County. 

Now, in regard to Frederick County. It is stated in contestant’s brief that 
the electoral boards of Frederick County and Winchester were appointed by 
Judge Harrison. There is not any evidence in this case to bear that out, 
and the very law which contestant has put into this record shows that that 
would have been a legal impossibility. 

Mr. Paul. Mr. Fletcher, I do not want to interrupt you, but I do not think 
you are quoting us accurately there. AVe say that many of the election officers 
were appointed or may have been appointed by boards which Judge Harrison 
had previously appointed. 

Mr. Fletcher. You may have intended to say that. 

Mr. Harrison. That could not be possible. 

Mr. Fletcher. Just one minute. I will explain what really was said in re¬ 
gard to that. In regard to the electoral board of Frederick County, on page 
160 of contestant’s reply brief the following appears: 

“ This is the county of which Winchester, contestee’s home, is the county 
seat. Contestee had been the judge of the circuit court of this county before 
entering Congress, and many of the election officials were selected by the elec¬ 
toral board which he as judge had appointed.” 

Mr. Harrison. That could not be true. 

Mr. Fletcher. It was impossible for Judge Harrison to have appointed those 
electoral boards. The electoral board is composed of three members. One 
goes out automatically every year. Judge Whiting succeeded Judge Harrison 
in 1916. In February, 1917, one of the three members whom Judge Harrison 
had appointed ceased to be a member, and Judge Whiting filled the vacancy. 
He did the same in 1918, the same in 1919, and the same in 1920. So it would 
have been a legal impossibility for Judge Harrison to have appointed the men 
who composed the election board at the time of this contest. 

The Chairman. In every case are different persons appointed by the new 
judge? 

Mr. Fletcher. It does not appear in the record. The record is absolutely 
■silent in regard to that in Frederick County. Contestant attempted to show 
in Clarke County, one of the counties in Judge Harrison’s circuit, that lie had 
appointed these same members of the electoral boards who were holdovers, 
but the clerk of the court examined the record and testified that none of them 
had ever been appointed by Judge Harrison, but all of them had been appointed 
ffiy Judge Whiting. 

Mr. Paul. That was in Clarke County. 

Mr. Fletcher. That was in Clarke County. 

Mr. Harrison. I would like you to make this very plain. Not only does the 
law show that I could not have appointed that board or any member of it, but 
as a matter of fact there was no evidence to show that any member of that 
board was an appointee of mine, originally, and as a matter of fact they 
were not. 

Mr. Fletcher. I so stated. 

Mr. Paul. That is the statement made in the brief. 

Mr. Harrison. You stated that I appointed the boards that appointed the 
election officers. 

Mr. Paul. Any number of election officers stated they had served as such 


tfor six or eight years. 

Mr. Harrison. Yes. 

Mr. Paul. Those members were appointed by the board you appointed. 
Mr. Harrison. Oh, yes. 

Mr. Fletcher. That is entirely different from what you stated. 

Mr. Paul. That was what we say, and what we meant to state. 

Mr. Fletcher. I ‘think the committee understands that situation now. 


30 


PAUL YS. HAERISON. 


There were only two members of the electoral boards called, and they were 
called to show that the reason Republican judges were not appointed in every 
precinct was because it was impossible to obtain them. The record shows that 
it is with the greatest difficulty that people can be found to act as judges of 
elections. It is an office without honor and without pay, and political interests 
are not sufficiently acute in the seventh congressional district to warrant a man 
seeking the office. 

Mr. Gaver, a member of the electoral board of Clarke County, was called as a 
witness by contestee. He was asked in regard to the personnel of the judges 
of the different precincts. Let me say here that of the nine precincts in Clarke 
County, the record shows—in the first place, in contestant’s notice of contest 
he alleges that all the jud'ges in every precinct in Clarke County, save one, were 
Democrats. The evidence shows that in six of the nine precincts there was a 
Republican judge. The explanation in respect to one of the precincts, Mount 
Airy, why there was no Republican judge there, was that until this last elec¬ 
tion for years there had never been any Republican votes. Then a Republican 
vote suddenly appeared, but who cast it was unknown. That is the explana¬ 
tion why there was no Republican judge at Mount Airy. But I will, get to that 
when I discuss the situation in each precinct where there was no Republican 
judge. 

Mr. Gaver, a member of the electoral board, testified as follows (Rec., 1166- 
1168) : 

“ Q. Mr. Gaver, you all appoint the judges and registrars throughout the 
county?—A. Yes, sir. 

“ Q. Has it been your purpose to have Republican judges at all precincts 
wherever you could?—A. Yes; so far as we could. 

“ Q. Have you made an effort to do so?—A. In one or two instances we have 
been unable to appoint a Republican. * * * 

“ Q. Has the Republican executive committee of this county ever called on 
you to appoint a Republican?—A. Not since I have been on the board. 

“ Q. How about Mount Airy; is there a Republican judge there?—A. I am 
not able to tell you. 

“ Q. Have there been any Republican voters there until the last year or two?— 
A. Not in Mount Airy. 

“ Q. It has been solid Democratic?—A. l T es, sir. 

“ Q. Has any request been made of you on the part of the Republican execu¬ 
tive committee as to the appointment of a Republican judge at Berryville?— 
A. No, sir.” 

That was one of the other precincts. 

“ Q. Has any Republican ever suggested wanting such?—A. No, sir. 

“ Q. Do you have a great deal of trouble having Democrats or Republicans 
serve?—A. So much that I think I will get out. 

“ Q. It is difficult to get good men, either Republicans or Democrats, to 
serve?—A. Yes, sir.” 

And again I asked him these questions (Rec., p. 1167) : 

“ Q. In appointing judges you always try to appoint men of high character, 
representative men in the community, those who would do their duty earnestly 
and efficiently?—A. We do; certainly. 

“ Q. And no application has been made to you by any representative of Capt. 
Paul or by any representative of the Republican Party of any community to 
either appoint a Republican judge or any particular judge at any precinct?— 
A. There never has been. 

“ Q. The same is true in regard to character, so far as the clerks you appoint 
at the different precincts?—A. Yes, sir. 

“ Q. You endeavor to secure the best men, and men who would perform their 
duties fairly and impartially?—A. We have tried to do that.” 

So much for the action of the electoral board in Clarke County. It is not 
shown or claimed by the contestant at any place in his brief, or shown any place 
in the record, that the electoral board of Clarke County was not composed of 
men of high character and good citizenship, or that any Republican ever re¬ 
quested the appointment of a Republican judge at any of the three precincts 
where there was no Republican judge; and it is not shown that at those precincts 
there was any Republican competent, capable, qualified, able to read and write, 
and known to be a member of the Republican Party who would serve. 

I will next consider Albemarle County, in respect to which I will hereafter 
show that the failure to appoint bipartisan judges was due to inability to ob¬ 
tain them. Not the slightest partisanship or unfairness is‘shown on the part 


PAUL VS. HARRISON. 


31 


of the board. The testimony of Judge Dabney showed that when Mr. Andrews, 
a member of the board, stated that he intended to vote for Mr. Paul and Mr. 
Harding, Judge Dabney stated to him that it made no difference and requested 
him to remain on the board. There is absolutely nothing in this record, and 
you may read it from the first page to the last in any way you see fit, which 
can cast any reflection upon the electoral board of Albemarle County. There is 
nothing to show that they did not appoint Republican judges wherever it rested 
in their power to do so; but, gentlemen, no man can do the impossible. No 
man can appoint a Republican judge when there are none to appoint. No man 
can complain on account of the failure to appoint a Republican judge under 
those circumstances. 

Mr. Luhring. Do they have a Republican organization in Albemarle County? 

Mr. Fletcher. They have a Republican organization in Albemarle County, of 
which Mr. Jim Humbert is the leader, and Mr. Jim Humbert in several instances 
requested that a particular judge be appointed. He made that request for 
Seottsville, a precinct which lias been bitterly attacked by the contestant. He 
requested the appointment at Seottsville of Mr. J. H. Gault, and was told by 
Mr. Percy T. Dunn, of the electoral board, that Mr. Gault had already been 
appointed. 

Mr. Humbert also asked that Mr. O. F. Philips be appointed Republican judge 
at Ivy, and complaint is made by contestant that the Democrats appointed an 
old and infirm man at Ivy, and that was Mr. Philips. Mr. Dunn wrote that to 
Mr. Humbert, and told him he had already appointed Mr. Philips a Republican 
judge at Ivy. 

In every instance where Mr. Humbert made a request for the appointment of 
a Republican judge, the electoral board of Albemarle County gladly appointed 
him, and as Mr. Dunn, the member of the board, says he “sort of relied upon” 
Mr. Humbert to select the appointment of Republican judges, or to determine 
who he wished appointed (Rec. p. 1828). Certainly a fair conclusion or a fair 
argument would be to say that if Mr. Humbert did not ask for the appointment 
of a Republican judge at a particular precinct, it was because no Republican 
there was in his judgment competent to serve and qualified to act and who 
would act. When he asked for one at a certain precinct, if he was dissatisfied 
with the fact that there were none at other precincts, would he not have asked 
for them? Mr. Dunn showed every willingness, every desire to accommodate 
him, and Mr. Humbert was a man who had active charge of the contestant’s 
campaign in Albemarle County, and if the expense bill of the contestant is put 
in it will be shown that he had been summoned by the contestant as a witness 
in this case, but was not called by him. 

What is the testimony of Mr. Dunn, a member of the electoral board of 
Albemarle County? He testified as follows (Rec., pp. 1825, 1826) : 

“ Q. The electoral board, I believe, appoints the judges and clerks of elec¬ 
tions?—A. Yes, sir. 

“ Q. Mr! Dunn, it appears that in some of the precincts no Republican judge 
or clerk was appointed. Just give you reasons for that.—A. Since I have been 
on the board we have tried to get a Republican judge wherever we could. I 
have been on several years. 

“ Q. Has the board ever shown any discrimination in the appointment of 
judges—Republican or Democrat?—A. Not that I know. We always tried to 
do the square thing. At a good many of the precincts we haven’t been able to 
get Republicans for judges. There are four or five of the precincts I have 
never been to in my life, and don’t even know the election officers personally. 
Those appointments are made, as a rule, by recommendation from some party 
around the precincts. For instance, I have never been to Alberene, Porters, or 
Howardsville. Some of the officers there I don’t know at all; but I do know 
that where I know them personally I think we have Republicans, and we have 
aimed to put them in every precinct.” 

He goes on to say they have always tried to get them. And on page 182< 
of the record the following appears: 

“ Q. In other words, the electoral board has tried to get Republicans at every 
precinct?—A. Yes, sir; as far as we could, since I have been on the board. 
Lots of these people, I say, I don’t know personally; don't know whether they 

are Republicans or Democrats. - . . 

“ Q. Has your failure to appoint Republicans been due to any discrimination 
on the part of the electoral board?—A. No, sir; we never have, as fai as I 
know. 


* 


* 


* 


* 


* 


* 


* 


32 


PAUL VS. HARRISON. 


“ Q. For Scottsville, the judges appear to be, as appointed by the electoral 
board, P. V. Foland, J. H. Gault, and T. E. Clements. Which one of these 
judges was appointed to represent the Republican Party?—A. Well, I had a 
letter from Mr. Humbert, and one of my children was sick, and I got my sister 
to look at the books. I wrote Mr. Humbert that I thought Mr. Gault was already 
on the book. I had recommended Mr. Gault as a Republican judge at Scotts¬ 
ville. I got her to go to the books and find he was already on the book, and 
wrote Mr. Humbert to that effect; so I judge he is a Republican. At the same 
time, he wrote me to have Mr. Philips appointed at Ivy, and he was already on. 
I know about Mr. Philips personally, but didn’t know about Mr. Gault until 
Mr. Humbert wrote me.” 

And on page 1832 of the record the following appears: 

“ Redirect examination by Mr. Walker: 

“ Q. In other words, Mr. Dunn, the electoral board made an effort to get 
Republican judges at every precinct?—A. I think I stated that. We had no 
reason not to have a Republican at every precinct, except we were not able 
to get them at some. 

“ Q. You said you had some correspondence with Mr. Humbert with reference 
to appointments?—A. Several times I have, but last fall, especially, Mr. Hum¬ 
bert wrote to me. 

“ Q. Mr. Humbert is recognized as a leading Republican?—A. Yes, sir.” 

Now, then, that brings us to the consideration of the electoral board at 
Charlottesville. On that board, which is asserted to be a partisan board, 
was Mr. J. B. Andrews, a Republican, who announced prior to election that 
he intended to vote for contestant and Mr. Harding. The only criticism 
which I apprehend counsel for the contestant will make is that this elec¬ 
toral board appointed four colored men as judges in Charlottesville. I will 
come to that question when I discuss the personnel of the judges. 

All the evidence in this case, gentlemen, is to the effect that the electoral 
boards were composed of men of high character. There is nothing to show 
any partisanship or any discrimination. There is nothing to show in a single 
instance that in the campaign of 1920 or at any time prior to that time there 
had ever been any refusal on the part of the electoral board of any com¬ 
munity to appoint any judge whom any Republican suggested, and there is 
nothing to show that any Republican was ever dissatisfied with any Repub¬ 
lican in any precinct in which there was either a Republican judge or no 
Republican judge. Is it not fair to conclude that if the Republians had been 
dissatisfied with the failure to have Republican judges at any of these few 
precincts in Clarke County, and in Albermarle County, they would have made 
application to have had a judge appointed at those precincts, and that con¬ 
testant would have proved it in th s case? Before they can complain of the 
failure to appoint Republican judges, does it not seem that common fairness 
would suggest or require that they request that a Republican judge be ap¬ 
pointed? If they were dissatisfied with any Republican judge whom the 
Democrats had appointed, would it not seem that there should be some evi¬ 
dence in this case to show that they had requested that a different judge be 
appointed, or that someone else be substituted for the man to whom they 
now object? But there is absolutely nothing in this case—read the record 
from the beginning to end—which will show that at any time or on any oc¬ 
casion did the Republicans or did the contestant ever object to the failure 
to have a Republican judge at any precinct in any district, or ever make any 
objection to any particular man who was appointed to represent the Republi¬ 
can Party at a precinct. 

Let us now take up the question of registrars. The registrar is a man who 
receives 10 cents per name for placing the names of registrants upon the 
registration book. So far from being a desirable office is it that the statute 
requires that a man appointed by the electoral board to act as registrar shall 
serve for two years, unless he is excused by the judge. He has to apply to 
the circuit judge to he excused, and I venture to say that if the facts were 
known in this case they would be the same as they were in the case of Mr. 
Wingfield, a business man of Charlottesville, and registrar, who stated that 
nothing would give him greater pleasure than to have his term expire (Rec., 
p. 98). They are not partisans. Xhey are unwilling officers who are com¬ 
pelled by the law to serve. While it is all right to say that they are a part 
of this great machine, the evidence shows absolutely to the contrary. 

In no case has it been shown that there was any impropriety on the part 
of any registrar, or any discrimination, or any partiality, save possibly in a 


PAUL VS. HARRISON. 


33 


little precinct in my own county, where there was an error, I concede, on the 
part of the registrar. That, was at Amissville, in regard to about 14 
persons who applied for registration, but who did not vote or attempt to vote 
or offer to vote. In the rest of the district the testimony shows that the regis¬ 
trars acted fairly and impartially, that they knew no politics, that they knew 
no color, that as a rule they registered anybody that, asked for registration, 
and instances of rejection are so few that it is hardly worthy of mention. 

Let us take up the question of the actions of the registrars. Every regis¬ 
trar has stated that he knew no politics and was guilty of no discrimina¬ 
tion. The record, as I stated, so shows. Let us look at the testimony of 
James Armel, registrar at Carpers Valley, Frederick County, carried by the 
contestant found on pages 431 and 432 of the record. This is a precinct of 
which the contestant in his notice made the charge that the registrar was a 
partisan of the contestee and falsely and fraudulently placed upon the regis¬ 
tration books names of persons who had not made application as required 
by law. What did Mr. Armel say? 

“Q. Capt. Paul carried Carpers Valley precinct, I believe?—A. By a small 
majority. 

“ Q. Do you recall whether the figures were 75 for Capt. Paul and 56 for 
Judge Harrison?—A. No, sir; I have only what I heard and that is all I 
know about it. 

“ Q. Did you show any discrimination between Republicans and Democrats 
who applied to you for registration?—A. Absolutely none. 

“ Q. You required the same of everybody?—A. Yes, sir; I treated them all 
alike. 

“ Q. Did all the persons who registered with you do all that you requested 
them to do?—A. l"es, sir. 

“ Q. Did you put any name on that book as a registered voter dishonestly or 
fraudulently?—A. Why, certainly not. 

“ Q. You performed your duties as registrar in an honest and fair way?— 
A. To the best of my knowledge and ability. 

“ Q. Did you vote for Judge Harrison or for Capt. Paul?—A. I voted for 
Capt. Paul. 

“ Q. You treated all of the registrants fairly, and discriminated against none 
on account of party affiliations?—A. I certainly treated them all alike. 

“ Q. Did every person whose names were placed upon the books do all that 
you required them to do?—A. Y r es, sir.” 

And further he says (Rec., p. 432) : 

“ Q. It has been alleged by Capt. Paul in his notice that you were a partisan 
of Judge Harrison. In other words, that you were biased against Capt. Paul, 
and that you wrongfully and fraudulently placed upon the registration book 
names of a number of persons. Is that true or not?—A. I hardly would have 
voted against Harrison if I had.” 

And the testimony of Registrar McKeever, at Lamps, in Frederick County, 
found on pages 416-417 of the record, is along the same lines: 

“ Q. You say you voted the Republican ticket in this election between Capt. 
Paul and Judge Harrison?—A. Yes, sir. 

“ Q. And voted for Capt. Paul?—A. Yes, sir.” 

That is a precinct which went Republican. 

“ Q. It has been stated by Mr. Paul in his notice that you were a partisan 
of Judge Harrison, and that you were biased against Capt. Paul, and that you 
falsely and fraudulently placed upon the registration books names of persons 
who did not have the right to vote.—A. I am very sorry to say that Capt. Paul 
has been misinformed. 

“ Q. You had no bias or prejudice in any respect toward or against Capt. Paul 
or Judge Harrison?—A. No, sir. 

“ Q. And you tried to treat everybody fairly, both Capt. Paul and Judge Har¬ 
rison?—A. Yes, sir.” 

Take also the testimony of Registrar Dearmont, of Turners Shop, in Clarke 
County, who is also charged with being a partisan of contestee and with hav¬ 
ing falsely and fraudulently placed names upon the registration book (Rec., 
p. 313) : 

“ Q. You have been charged by Capt. Paul with being a partisan of Judge 
Harrison.—A. Being what? 

“ Q. You are charged with being a partisan of Judge Harrison ; in other words, 
that you favored Judge Harrison.—A. I do not know how that was, because I 

93942—22-3 



34 


PAUL YS. HAKRISON. 


voted for Capt. Paul; I do not know whether that is favoring Judge Harrison 

or not. TT 

“Q. You voted for Capt. Paul, and it was not a great favor to Judge Har¬ 
rison, was it?—A. No, sir. It is the first time I ever voted the Republican 

ticket. T 

“Q. Mr. Dearmont, did you participate in the primary in August?—A. 1 did. 

“ Q. Who did you vote for in the primary?—A. Col. Reedy.” 

Col. Leedy was the opposing candidate to Judge Harrison in the primary. 

At Lindseys, Albemarle County, Registrar Harrington, a Republican, who also 
acted as judge of election, while a Republican all his life and he voted for 
Harding for President, entered the Democratic primary and in pursuance of 
the primary pledge voted for contestee. 

Whenever a Republican exercised the right to vote as between Judge Harri¬ 
son and Capt. Paul, notwithstanding the fact that he voted for Mr. Harding, 
wherever he for any particular reason determined to vote for one candidate as 
against the other, for whatever reason I know not, he is termed by contestant a 
“ so-called ” Republican. 

Registrar Harrington was called as a witness by the contestant, and testified 
to the absolute fairness of the election at Lindseys. (Rec., pp. 200-201.) 

At Flint Hill, Rappahannock County, Registrar Lawson, appointed as regis¬ 
trar by the electoral board in September, 1920, voted for Col. Leedy in the 
primary, and while he claimed to have voted for the contestee, he stated he was 
not in favor of the contestee and he wanted to vote for the contestant. (Rec. 
p.583.) 

At Jolletts, Page County, Registrar Lam voted against contestee in the pri¬ 
mary and against him in the general election. (Rec., pp. 919-922.) 

At Berryville, a precinct of which much complaint has been made in respect 
to the registrar- 

Mr. Luhring (interposing). What county? 

Mr. Fletcher. Clarke County. 

The attempt was made to throw out a great many votes on account of no 
applications, and it was alleged that the Democratic registrar was a partisan of 
the contestee and falsely and fraudulently a few days before the election placed 
upon the registration books a large number of names. Registrar Smith testified 
that he voted for the contestant, and also for President Harding. He also testi¬ 
fied that he voted against the contestee at the primary. (Rec., p. 306.) In other 
words, in this large precinct the registrar, charged with being a partisan of the 
contestee, voted against the contestee in the primary, when he and Col. Leedy 
were running on the issue of the modification of the Volstead Act and the 
strictly dry law. Then when it came to the general election, he voted against 
the contestee, and voted for Mr. Harding and the contestant. 

At Mount Airy, Registrar Bell did not vote for either contestant or contestee. 
(Rec., p. 280.) 

At Turners Shops, Clarke County, Registrar Dearmont voted against con¬ 
testee at the primary and for contestant in the general election. (Rec., p. 313.) 

In the second ward of Harrisonburg, Registrar Warren voted for the con¬ 
testant. (Rec., p. 1648.) 

Now, in regard to the actions of these registrars. Any one reading this record 
can see that they did not act in a partisan way. They did not refuse to regis¬ 
ter practically anyone; practically no one was denied registration, where the 
applications were taken. Black or white, Republican or Democrat, they were 
registered providing the registrar was satisfied that they could read and write 
and could have made out an application, and that they had paid their poll tax, 
and they took the oath required by the statute. 

Take, for example, the questions which were asked by Mr. Petefisli, a school¬ 
teacher at Marksville, in Page County, found on pages 1017-1049 of the record. 
I will concede that this action was highly improper; but Mr. Petefisli, like many 
school-teachers, thought he was drilling the registrants in a sort of school. 
That was improper. At the same time, Mr. Petefisli never refused registration 
to a single, solitary applicant for registration. He registered them all, regard¬ 
less of how they answered the questions. 

Le.t us also take as an illustration the action of Bernard Brown, registrar of 
the fourth ward in Charlottesville, who asked a few questions, probably none of 
which he could have answered. When the Negroes came before him, in a few 
instances he asked them some questions. One was, who was the President of 
the United States. A colored woman answered, “Mr. Tom Randolph.” (Rec., 
p. 71.) Mr. Tom Randolph is a lawyer of Charlottesville and, I think, assistant 



PAUL VS. HARRISON. 


35 


editor of the Charlottesville Progress. I presume you gentlemen would naturally 
think that this partisan Democrat,” this man who was put there for the pur¬ 
pose of discrimination, this cog in the wheel of this great conspiracy, would 
under those circumstances have refused this application for registration on the 
ground of not being qualified. But no, gentlemen; notwithstanding her ideal 

resident was Mr. Com Randolph, of Charlottesville, her name wont upon the 
registration hook. (Rec., p. 86.) 

So that even those questions which were asked have no bearing and are of no 
moment in this case. In every instance the party who applied for registration 
w’as registered. So that certainly, so far as the contestant having any ground 
for complaint on account of the discrimination in refusing to register is con¬ 
cerned, there is not the slightest ground for complaint on that score. The 
instances of failure or refusal to register are so negligible that they are not 
worthy of discussion. 

Now, then, in regard to complaints which are made here in regard to requiring 
applications. 

Mr. Harrison. All the testimony in regard to registrars is brought out in the 
testimony of the contestant himself. 

Mr. Fletcher. Yes. I omitted to state that in every instance where the regis¬ 
trars testified in regard to registration they testified to the absolute fairness 
of their conduct; to the fact that they were not biased or influenced by any 
political motive; to the fact that they treated the contestee and contestant 
fairly and impartially; and discriminated against no one on account of race, 
color, or politics. 

Mr. Hudspeth. Is there any testimony that any applicant for registration was 
refused ? 

Mr. Fletcher. In one instance there is testimony to that effect—at the little 
precinct in Amissville, in Rappahannock County, where about 14 Negro women 
made application to register and the registrar did not register them. That is 
the only instance, so far as I know, in this entire record. 

Mr. Hudspeth. In the entire district? 

Mr. Fletcher. In the entire district. 

Mr. Paul. Of course, we do not concede anything like that. 

Mr. Fletcher. You do not concede anything I say, I suppose. 

Mr. Hudspeth. I just w r anted to know what the record showed in respect 
to that. 

Mr. Fletcher. That is exactly what the record shows in respect to that. 

Now, in regard to the complaint and the argument which has been made that 
while in Democratic districts applications were not taken, and therefore Demo¬ 
crats w r ere allowed to freely register along with Republicans, and there was no 
discrimination and no denial of registration, yet it will be argued by con¬ 
testant that in Republican districts Republicans were required to make written 
application and to do it in strict conformity to the law r . Now, gentlemen, if 
you will examine these applications you will observe that practically in no 
instance, regardless of how imperfect those applications were, was any appli¬ 
cant ever rejected on account of a defective application. Can you tell me what 
distinction could possibly exist between the case of a man going to register 
and saying to the registrar. “ I desire to register ” and the case where a man 
goes to the registrar and hands him a paper written in the most illiterate 
manner upon which are the words “ I desire to register ” without any pretense 
of compliance with the law? Can anyone see the distinction? If the Constitu¬ 
tion is mandatory, the application which is required must conform to the 
Constitution. It must contain the nine requisites for an application. It must 
state the name, the age, the date of birth, the place of birth, the occupation, the 
occupation for the preceding two years, the residence, the residence for the 
preceding two years, and whether or not the applicant has ever previously 
voted. If the constitution is mandatory, then a registrar who takes an appli¬ 
cation which does not contain those provisions is accepting a defective 
application. 

But in order to show there was no distinction made and that no one was 
rejected on account of defective applications there are many applications in 
this record where all the applicant said was “I desire to register”; nothing 
else In every instance the registrar placed the name of that person upon the 
registration books. Hundreds and hundreds of Republicans made applications 
to register which did hot conform to the constitutional requirements. Many 
of them, particularly in the County of Shenandoah, at Quicksburg (Rec., pp. 
673-680), Columbia Furnace (Rec., pp. 828-840), and at other precincts are 
so illiterate that they are absolutely masterpieces of ignorance. 


36 


PAUL VS. HARRISON - . 


Mr. Gilbert. Both white and black? 

Mr. Fletcher. They are all white; only white voters. There is practically 
no colored population in that county. It is nearly all white. 

The point I am trying to make now is that there was no discrimination on 
the part of the Democratic registrars, even where there were applications re¬ 
quired ; that anything in the shape of an application was acceptable to and 
accepted by the registrar, and that no man was deterred from registration, 
even though he was required to make a written application, by the fact that 
he was thoroughly incapable of making one and that his application was 
defective. 

Mr. Harrison. Before you leave that I would like to have you bring out 
the fact that in a large number of Republican precincts no applications were 
required at all. 

Mr. Fletcher. Yes. 

Mr. Harrison. And that an actual count of the vote where no applications 
were required will show an increased majority for me. 

Mr. Fletcher. Yes. I will say further that in Page County, which was 
carried by the contestant by 456 majority, applications were not required 
at many precincts. No applications were taken at Shenandoah precinct, the 
largest precinct in Page County. And there were other instances in Page 
County, which Judge Harrison will enumerate, where no applications were 
taken. It was not an uncommon thing in Shenandoah County, where the 
contestant received a large majority, approximately 1,100, for applications not 
to be taken. No applications were ‘taken at Court House and Town Hall pre¬ 
cincts of Woodstock, or Strasburg, Fisher Hill, New Market, and four or five 
other precincts. 

Mr. Gilbert. Is that disregard of the constitutional provision peculiar to this 
election or has it been customary to disregard it from the time of the adoption 
of the constitution? 

Mr. Fletcher. It has been customary to disregard that practically since the 
constitution was adopted. It has been treated as a dead letter. Applications 
have never been required at many of the precincts. 

Let me say that in 1921, when the Republican Party made an aggressive 
campaign in the State of Virginia, they made no attempt whatsoever in seventh 
congressional district or at any place in that district to have these names 
which the contestant claims to be illegal voters, and that had been improperly 
registered, stricken from the registration books. The registration books have 
been good enough to elect the contestant for two terms to the State Senate; 
they have been good enough to act for the puropse of elections in Democratic 
primaries and in general elections for years prior to 1920; and they were 
good enough to serve the political uses in 1921, and no attempt was made to 
purge or correct them, although the Republican Party made an aggressive 
campaign in that year. 

Mr. Luhring. Is it your understanding those names could have been stricken 
off under the proper procedure? 

Mr. Fletcher. Unquestionably; unquestionably. 

Let me say now that contestant has made a very grievous misstatement'in 
saying on pages 52 and 53 of his reply brief that sections 107 and 103 of the 
Code of Virginia do not provide an adequate remedy for improper and illegal 
registration. He has stated to you that section 98 of the Code of Virginia 
requires the registrar to return to the clerk’s office a list of the persons whom he 
registers, and it is made the duty of the clerk to place those names upon the 
registration books, and he has stated that in Clarke, Albemarle, and Frederick 
Counties, and in the city of Winchester no such books were kept; but he has 
failed to tell you that section 98 of the Code of Virginia provides that within 
five days after registration day it shall be the duty of the registrar to post the 
list of names of those whom he has registered in three or more public places 
in his district. 

Mr. Luhring. Did he do that? 

Mr. Fletcher. Apparently he did. It will be presumed he did, for there is 
no evidence that he did not. In some instances in the record, where the ques¬ 
tion was brought out, the registrar stated that he did. 

Furthermore, let us take into consideration this requirement that the registrar 
record these names in the book. It is true that it is found in the code of 1919, 
which took effect in January, 1920, and which controlled this election, but it was 
not found in the code of 1904. There was nothing in the code of 1904 to require 
the registrar to return the list of names of those whom he registered to 


PAUL VS. HARRISON. 


37 


the clerk’s office, and there was nothing in the law for three years prior to the 
election in question requiring any such return to be made or any such entry 
to he made by the clerk. 

The law in 1904 was to the effect that the registrar should post these names 
in three or more public places. Tn 1906 a statute was passed requiring the 
names to be returned to the clerk. In 1916 that statute was repealed, and 
for four years prior to this election all the registrar had to do was to post these 
names in three or more public places. The posting of these names gave 
anyone the opportunity to see who was illegally, improperly, or irregularly 
registered, and he had the opportunity under section 107 of the Code of Virginia 
to at once go to the circuit judge of his county and make complaint in regard 
to this registration, and the statute made it the duty of that judge forthwith, 
and in preference to any business of the court or any business of his, to take 
up that question of registration and purge the list. 

Mr. Luhring. How would he know from that posted list that the fellows 
did not make a written application? 

Mr. Fletcher. The books of the registrar are public property. 

Mr. Luhring. The registrar would keep the books? 

Mr. Fletcher. Yes; and keep the applications. 

Now, so much for what I have to say in reference to registrars. My position, 
gentlemen—and I see that my time is rapidly passing—is that registration is 
conclusive and can not be collaterally attacked, save in the method provided 
by the Constitution and the statutes of Virginia. 

Mr. Luhring. That brings us to a discussion of the question as to whether 
that is a mandatory or directory provision. 

Mr. Fletcher. I will concede that ordinarily constitutional provisions, where 
they absolutely require anything, should he construed to be mandatory rather 
than directory. The authorities are to that effect, and, as Col. Anderson says, 
I believe that to be the law. But the constitution should be construed in 
accordance with its true meaning, and it should be determined from the con¬ 
stitution what should be the remedy afforded. The mere fact that the consti¬ 
tution says that such and such a thing shall be done, and then states how 
that may be remedied, shows that it was the intention of the constitution 
that the failure to do such thing should be remedied in the prescribed way, 
and that prescribed way is the only means by which any violation of the 
constitutional mandate shall be rectified. 

Mr. Luhring. You mean the statute prescribes the way—section 107? 

Mr. Fletcher. That is a part of section 25 of the constitution of Virginia, 
which requires that the legislature shall pass laws providing for appeal and 
for purging the lists of illegal registrations. 

Mr. Luhring. But that is no registration, if the contention of the con¬ 
testant is right. 

Mr. Fletcher. My contention is that whether it was no registration or not 
is a question of fact, and can only he a question of fact and not be a question 
of law. My contention is that registration, where there are no applications, 
although it may be contrary to the statute and to the constitution and in 
violation of the constitution, can not be collaterally attacked; that regis¬ 
tration by the registrar is like the judgment of a court, and that where in 
order to attack a judgment it is necessary to go into questions of fact not 
appearing on the face of the record it can not be collaterally attacked. In 
other words, where a court of general jurisdiction has rendered its judgment, 
and on the face of the judgment it does not appear whether or not the court had 
jurisdiction, it will be presumed on a collateral attack that the court had 
jurisdiction, and if it becomes necessary in order to show that the court 
had no jurisdiction to go into a question of fact not disclosed by the record, 
then the judgment can not be collaterally attacked. The want of jurisdiction 
must appear on the face of the judgment in order to hold it absolutely void, 
and where the want of jurisdiction does not appear on the face of the record 
and it must be shown by something other than the record, the question can 
only be raised by a direct attack on the judgment either in the court which 
rendered it or in an appellate court, and can not be raised by a collateral 
[itt&ck 

Mr. Luhring. In this particular case the written application is a juris¬ 
dictional question, under the McLemore decision. 

Mr. Fletcher. I understand that. 

Mr. Luhring. Would it not appear on this record filed in the registrar’s 
office if there was no such application? 


38 


PAUL VS. HARRISON. 


Mr. Fletcher. Conceding that it does, a written application is required 
only where a man is physically able to make it. Where you take the regis¬ 
tration book in case of voter A you must go further and show that voter A 
was physically able to make that application before you can hold that it 
was an illegal registration. 

Mr. Lull ring. As I understand that law, the fact that he is physically unable 
to do it himself gives him the right to have some one else do it for him. 

Mr. Fletcher. I beg your pardon; no. 

Mr. Luhring. A man who is physically unable after January, 1904. can 
register without a written application? 

Mr. Fletcher. Absolutely. 

Mr. Luhring. Is that the law? 

Mr. Fletcher. That is the law. The law is that a man is entitled to register 
who satisfies the registrar that he has paid his poll tax; secondly, that he 
is physically unable to make a written application; thirdly, that if he is re¬ 
quired by tlie registrar, he answer any question which may be propounded to 
him by the registrar. Therefore, I say that the mere fact that a man whose 
name appears on the registration books, and when the records of the registrar 
are examined no written application can be found, is not per se an illegal 
voter, but you must go further and show by evidence that this registrant was 
physically able to make an application. Under those circumstances, I say 
that it is the law throughout the United States that a judgment which on 
its face is regular, which can only be attacked by going out of the record 
and showing the facts, can not be collaterally assailed. 

Mr. Luhring. I do not think anybody doubts that. 

Mr. Fletcher. Take this question of applications. It is very analogous to 
a case where an infant is appointed administrator. Under the law of many 
States an infant is ineligible and incompetent for appointment as adminis¬ 
trator, but suppose a court appoints an infant administrator. Suppose that 
infant files a bill to sell land or take some other step. Can a man come in 
and say, “ This appointment is illegal and void, for the reason that this man 
is incompetent and ineligible for the appointment?” Unquestionably not. 
That question has been decided in Virginia on repeated occasions. It has 
been very ably discussed in West Virginia, where the court laid down the rule 
unqualifiedly, and it is the law throughout the United States. 

Mr. Luhring. The constitution prescribes certain things that must be stated 
in this written application. I notice quite a number of these applications do 
not comply with those requirements. They simply say “ I apply to register,” 
and state their age and perhaps their race. In other words, they leave out 
some material requirements. Of course, the fact that the man writes part 
of that indicates that he is sufficiently able to make a written application. 
What do you say about applications that do not comply with the constitu¬ 
tional requirements? Are they void? 

Mr. Fletcher. My position is, and I trust that the committee will under¬ 
stand me, that a registration can not be collaterally attacked—that the registra¬ 
tion is conclusive; and I have always taken the position that a registration 
can only be attacked in the means prescribed under section 25 of the constitu¬ 
tion of Virginia and sections 107 and 103 of the Code of Virginia passed in 
pursuance thereof. But if the constitution is mandatory for one purpose, 
it is mandatory for all. If the constitution requires a written application to 
be made and the man is physically able to make it—although, as we have seen, 
it does not require a written application where a man is physically unable— 
if it is mandatory in that case, it is likewise mandatory in the case of an 
application which it says shall contain these nine requirements. If it is man¬ 
datory in one respect, it is mandatory in all; and the application that does 
not contain those nine requirements is void if the application of one physically 
able to make an application but who does not make it is void. 

Mr. Luhring. Then, of course, it is not a question of voiding it, as it is a 
thing that has not existence. Therefore, the vote would be absolutely illegal. 

Mr. Fletcher. I take the position, may it please the committee, that I do 
not claim it is void. I say that if the constitution is mandatory in one respect, 
it is mandatory in all. But the position which I take is that the constitution 
prescribes how this defective registration, how registration without compliance 
with all the minutiae prescribed in the constitution, shall be remedied, and 
where the constitution prescribes a method, that method is exclusive and must 
be followed. 


PAUL VS. HARRISON. 


39 


Mi. Luhring. \\ hat is your opinion of this particular constitution? Are 
these provisions mandatory, in your judgment, or are they not? 

Mr. F LETCHER. I do not think they are. 

Mr. Rose. Let me call your attention to a matter. I understood you to refer 
a moment ago, in support of your contention with respect to the" mandatory 
piovisions of the constitution, to an illustration of the court appointing a minor 
as administrator, and that later on, by petition to the court, the court would 
authorize that minor to sell a piece of land. Do you think the court is pre¬ 
cluded from removing that minor? 

Mr. Fletcher. Oh, no. 

Mr. Rose. Then I misunderstood you. I understood you to say the jurisdic¬ 
tion had been fixed and established and could not be attacked. 

Mr. Fletcher. No. It could not be collaterally attacked. It could not be 
attacked in a suit brought by this man. The remedy would be.to go to the 
court in which the minor had been appointed and show the court that he was 
disqualified and have him removed. If he sued in a court of another jurisdic¬ 
tion or in another suit in the same jurisdiction, it could not be collaterally 
attacked. 

Mr. Rose. Jurisdiction can be attacked at any time at any stage of the pro¬ 
ceeding. 


Mr. Fletcher. Yes. Now, in regard to the right of the registrar to exercise 
judgment in the State of Virginia, the office of registrar unquestionably in¬ 
volves exercise of judgment and discretion. 

Mr. Harrison. Just a moment. I want to get one thing straight before the 
committee. We claim that a defective application stands exactly on the same 
footing as no application. 

Mr. Fletcher. Exactly. 

Mr. Harrison. The constitution prescribes a written application containing 
certain things, and if it does not contain those things it is the same as an appli¬ 
cation that has nothing on it. 

Mr. Fletcher. That is the question. 

Mr. Luhring. I will tell you frankly, that is the question in this case that 
is bothering me considerably. 

Mr. Fletcher. There have been no decisions in Virginia of any court, ex¬ 
cept those of Judges West and McLemore, in irsi prius courts, holding directly 
that registration without application is void. Judge Christian, in Anderson v. 
Craddock, 17 Yirg ilia Law Register 359, holds to the contrary. His opinion 
is quoted on pages 26-29 of contestee’s brief. 

Mr. Luhring. McLemore threw all those out. 

Mr. Fletcher. Yes; but we have only that judge, I think it was McLemore, 
and be threw them out on the ground that (lie applications themselves were 
defective. 

Mr. Luhring. Counsel for contestant insists that where you attempt to 
make an application it is voidable; that is. when it does not comply with 
all the requirements, it is a voidable application. 

Mr. Fletcher. Yes; we contend that it is void. 

Mr. Luhring. Is that your contention, that it is absolutely void? 

Mr. Fletcher. We contend that it is absolutely void, if a failure to make 
an application renders it void. If there is a failure to make a written ap¬ 
plication, it must be shown and proved before this committee can reject that 
particular vote that the, voter was not physically unable to make it. 

Mr. Luhring. I see your point. 

Mr. Fletcher. If the voter has lost his glasses, or if he has a peculiar kind 
of glasses which are necessary for him to use in order to read, he is physically 
unable to make it; if he is suffering from nervousness and can not go through 
the ordeal of making the application, even though he is able to read and 
write, he is physically unable to make it; if he has lost his arms, he is physically 
unable ot make it; if he is suffering from palsy or paralysis, he is physically 
unable to make it. There are a thousand and one things that might render 
a voter physically unable to make a written application. And when the vote 
of one man is attacked, the fact that there is no application in the custody 
of the registrar, or is among the registration records, is no reason why the 
vote of that man should be disregarded, for under repeated rulings of this 
House, and under the decisions of the courts, every vote is presumed to be 
legal until it is shown not to be legal. 

Mr. Hudspeth. Is there not a method provided under the statute whereby 
the contestant could have protested these registrations? 


40 


PAUL VS. HARRISON. 


Mr. Fletcher. Yes. 

Mr. Hudspeth. If he has not availed himself of that remedy of the statute 
and the constitution so provided, it is your contention that he can not come 
in at this time and raise that question? 

Mr. Fletcher. Absolutely. 

Mr. Hudspeth. I thought I so understood you. 

Mr. Fletcher. That the method prescribed by section 107 of the Code of 
Virginia for the correction of fraudulent, illegal, or improper registration, 
affords an adequate and complete relief, and that that registration can not 
be attacked collaterally, was fully settled by the Supreme Court of Virginia, in 
the case of Spilter v. Guy (107 Va., 811). In that case a petition was filed 
asking for an original writ of mandamus, in the supreme court, charging that 
the registrar had fraudulently and unlawfully registered' on the registration 
books numerous white and colored voters, who had not paid their poll tax 
assessed or assessable against them, and charging other reasons set out in 
the opinion. The petition asked for a writ of mandamus, and the defendant 
demurred on several grounds, and upon the particular ground that the peti¬ 
tioner had an adequate remedy under section 86 of the Code of 1904, which 
was the same as section 107 of the present Code of Virginia, and also because 
the duty devolved upon the registrar involved the exercise of his judgment 
and discretion. The court refused the writ of mandamus, stating it was of 
the opinion that the petitioner had an adequate remedy by virtue of sections 
86 and 83 of the Virginia Code of 1904, which sections correspond to sections 
107 and 103 of the present Code. 

Mr. Luhring. Do you mind if I go back to this section 25? 

Mr. Fletcher. Certainly not. 

Mr. Luhring. I want to clear that up in my own mind. There is a provi¬ 
sion that he shall answer under oath certain questions. 

Mr. Fletcher. Yes. 

Mr. Luhring. Touching his qualifications as a voter. 

Mr. Fletcher. Yes. 

Mr. Luhring. If a person can write out a written application and comply 
fully with the requirements in that written application it sets out in writing his 
qualifications? 

Mr. Fletcher. Yes. 

Mr. Luhring. There would then be no necessity to ask him any questions? 

Mr. Fletcher. No. 

Mr. Luhring. I want to get your opinion of the purpose of that section. Do 
you think that applies to those physically unable to make a written application 
and is intended to ascertain the qualifications by questions and answers which 
must be written down? 

Mr. Fletcher. I should imagine, Mr. Luhring, that that was intended to 
apply to cases where, under the constitution, it is provided that no man shall 
be registered who is an idiot, an insane person, or a pauper, or who has sent 
a challenge to fight a duel. It would seem to me that was intended to apply to 
section 23 of the constitution. That section provides: 

“The following persons shall be excluded from registering and voting: 
Idiots, insane persons, and paupers; persons who, prior to the adoption of this 
constitution, were disqualified from voting by conviction of crime, either within 
or without this State, and whose disability shall not have been removed ; per¬ 
sons convicted after the adoption of this constitution, either within or without 
the State, of treason, or of any felony, bribery, petit larceny, -obtaining money 
or property under false pretenses, embezzlement, forgery, or perjury; persons 
who, while citizens of this State, after the adoption of this constitution, have 
fought a duel with a deadly weapon, or sent or accepted a challenge to fight 
such duel, either within of without this State, or knowingly conveyed a chal¬ 
lenge or aided or assisted in any way in the fighting of such duel.” 

I imagine that is the purpose of that provision. 

I have quoted in my brief the decision of Judge Christian in the Lynchburg 
case and the decisions of other States are in accord with that law. The con¬ 
stitution of Louisiana provides practically the same as the constitution of Vir¬ 
ginia. Sections 197 and 201 of the constitution of Louisiana provide for the 
making of these written applications, the only difference between Louisiana 
and Virginia being that a copy of the application is set out in the constitution, 
and all that the registrant has to do is to fill it out. 

It would naturally seem that the decisions of the Supreme Court of Louisiana 
upon an analogous constitutional provision would be of great importance. Un- 


PAUL YS. HARRISON. 


41 


der the rulings in Louisiana it is held that the vote of a person, a voter failing 
to comply with these constitutional provisions for registration, can not be 
collaterally attacked. In Louisiana, as in Virginia, there is given the right 
to appeal and a correction and purging of the list. 

In the case of Jurregano v. Whittington (132 La., 454), it was held that the 
status of a registered voter can not be assailed in a primary election on the 
ground that he was not entitled to register, as article 210 of the Louisiana 
constitution of 1898 provides for a direct action against the voter for the pur¬ 
pose of striking his name from the registration rolls, and on such an issue gives 
the right of appeal without recourse to the supreme court. 

Mr. Dallinger. Is that the Louisiana Supreme Court? 

Mr. Fletcher. Yes; 132 Louisiana, 454. 

Mr. Gilbert. Do you cite that in your brief? 

Mr. Fletcher. No; that is not cited in our brief. 

Mr. Dallinger. Do you contend that holds that the provisions of the 
Louisiana constitution are merely directory and not mandatory? 

Mr. Fletcher. I contend that this case holds that in order to obtain relief 
for a violation of those provisions of the constitution of Louisiana you must 
apply for relief to the tribunal and in the manner directed by the constitution. 

In the case of Smith v. Police Jury (125 La., 726), it was held that where 
the names of voters had been entered on the registration books they can not 
be stricken therefrom in a collateral proceeding. The court said: 

“ It is contended that 15 taxpayers whose names appear on the registra¬ 
tion books should be deducted because they had not signed their names in the 
column of registration. We do not think in this collateral proceeding the court 
has. any jurisdiction to purge the registration rolls of the parish. Article 20 
of the constitution contemplates a direct action against the voter for the pur¬ 
pose of striking his name from the registration rolls, and on such an issue gives 
a right of appeal to the supreme court.” 

I have also cited other cases in my brief which are to the same effect, but 
they are cases where statutes are involved rather than constitutional pro¬ 
visions. 

In Rawl v. McCown (97 S. C., p. 1), it was held that failure to comply with 
the constitutional requirements of registration can not be collaterally at¬ 
tacked. Point 5 of the syllabus reads: 

“ Registration of the elector by the proper officer, unless reversed or set aside 
in the manner prescribed by law, is conclusive evidence of the elector’s quali- 
tications to vote at the time of election and such right to vote can not be col¬ 
laterally attacked, though his vote may be challenged at the polls for any other 
cause which makes it illegal.” 

That case involved the construction of the constitution of South Carolina', 
which contains provisions very similar to those found in the constitution of 
Virginia. 

Mr. Dallinger. Have you any other Virginia cases except the Judge Chris¬ 
tian decision? 

Mr. Fletcher. I have not discussed them, Mr. Chairman, because they are 
short. There is practically nothing to discuss. They merely take the position 
that the constitution is mandatory. 

Mr. Dallinger. You do admit then that there are Virginia decisions? 

Mr. Fletcher. Unquestionably. 

Mr. Dallinger. Stating it is mandatory? 

Mr. Fletcher. Unquestionably. But there is no Virginia decision to the 
effect that a defective application renders the registration voidable merely and 
not void, or to the effect that there is any distinction between the case of no 
application and a defective application. In Stokes v. Hatchett, 18 Va. Law 
Register, 251, Judge McLemore apparently recognized the fact that the appli¬ 
cations could be examined in order to determine whether they conformed to 
the requirements of the constitution, for he stated that the question of im¬ 
proper registration could be determined only in a few instances, as the appli¬ 
cations at most of the precincts did not appear in the record. And all the de¬ 
cisions in Virginia state that the application must conform to the specific re¬ 
quirements of the constitution, Judge McLemore’s opinion inclusive, except 
judge Christian, who holds that the application is not subject to collateral 

cl tt&CK 

Mr. Gilbert. As I catch your point, you concede that it is mandatory and 
his failure to Mo so will subject him to the penalty of having his name stricken 
off? 


42 


PAUL YS. HARRISON. 


Mr. Fletcher. Yes, sir. 

Mr. Gilbert. But if lie does not proceed according to tlie method pointed out 
in the constitution, although it is mandatory, it can not be attacked in another 
way ? 

Mr. Fletcher. That is it. 

Mr. Gilbert. The fact that it is mandatory is not conclusive of the fact that 
it can not be attacked collaterally? 

Mr. Flecther. Yes, sir. 

Mr. Harrison. It has to be challenged by three voters, too. 

Mr. Fletcher. Now, in regard to this question of defective application being 
voidable and not void: Contestant - a few minutes ago assailed my position 
that one of these nisi prius judges had held that defective applications not 
containing all the requirements were void. In the case of Stokes v. Hatchett 
(18 Ya. Law Register, p. 251) it is perfectly apparent that in that case appli¬ 
cations were involved, for Judge McLemore, who examined some of the ap¬ 
plications, says: 

“ Quite a large number of voters have been challenged both by contestants 
and contestee on the ground of improper registration. As only the registra¬ 
tion books and but a few of the applications of the voters challenged were put 
in evidence, and no other evidence was offered as to whether the said voters 
complied with the law in making out their applications for registration in their 
own handwriting, that question can not properly be passed on; but the judge 
of this court lias heretofore, in another contested-election case decided by him, 
ruled that section 73 of the code, requiring the applicant for registration to 
make application in liis own handwriting without aid, etc., was mandatory, and 
that unless the requirements of said section were complied with by tlie voter 
he was not properly registered and not entitled to vote. Of the voters chal¬ 
lenged by the contestants as having registered too late, within 30 days of the 
election, after an examination of the registrataion book at Plantersville and 
such applications are are tiled therewith, and the poll book of said precinct, it 
appears that the following-named persons were improperly registered and 
should not have been allowed to vote.” 

In regard to assistance to registrants, it would seem that where there is 
logically—that the contestant should have contended, logically, that if where 
there is an application, no matter how defective, that registration is voidable, 
then where an application was made with assistance that registration would 
have been likewise voidable. 

The Chairman. I think that the contestant stated that they were void? 

Mr. Fletcher. Yes; but I say it seems he should logically have contended that 
they were voidable. 

• The Chairman. That is the issue between you, viz, that lie contends where no 
application was made or where assistance was given contrary to the provisions 
in the Constitution it was void? 

Mr. Fletcher. Yes. 

The Chairman. You are contending that it was voidable? 

Mr. Fletcher. And can only be voided by process of appeal. He contends 
that where the registrar gave assistance the application was void. 

The Chairman. You contend it is just the same as if no application had 
been made at all? 

Mr. Fletcher. Yes. But what about when other registrants have given as¬ 
sistance as occurred at several strong Republican precincts—for instance, at 
Ottobine, where the contestant received about 102 votes and contestee about 
300, where the voter came in and copied an application? 

Mr. Anderson. We concede that is void and asked that it be stricken out. 

Mr. Luhring. You contend that the presumption is in favor of this registrant 
where he makes no written application? 

Mr. Fletcher. Yes, sir. 

Mr. Luhring. Is it necessary to set it up that it is conclusive? 

Mr. Fletcher. No ; I think registration is just like a judgment. It is con¬ 
clusive and can be attacked only like a judgment—that is, by appeal—and then 
you can decide- 

Mr. Luhring. Quite a number of these registrants, especially in the fourth 
ward, state they did not know how to make these written applications? 

Mr. Fletcher. They did in a great many instances, but I think if you will 
take those cases and tabulate all those instances where the registrar in Demo¬ 
cratic precincts said that the registrant was physically able to make an appli¬ 
cation, and go through the entire record, you will still see that the contestee 
will have a majority. 



PAUL VS. HARRISON. 


43 


The C hairman. 5 on have 30 m'nutes more. 

M Mr V. 1 f L f TCHEU ;- 1 wis l h nmv t0 CMl1 to a failure to take oaths. Under 

the statute, section 95 of the Code of Virginia, it is provided that “before a 

of S hiq r nna?iflpir 8iStel the n "T ? f a " y person ns « voter, he shall he satisfied 
of his qualifications as prescribed, and every person applying for registration 

before lie is registered, shall take and subscribe the following oath I do 

tndTws S of ea t h- <0 L a ? rUl) Vo 1 am en,itled to register under the constitution 
‘ °{ th \ s ^tate, and that I am disqualified from exercising the right 

of suffrage by the constitution of Virginia, which oath, so subscribed, shall be 
tiled with the registrar and preserved with the books of registration.” The 
oath required of the women registrants was similar. See section 5 of the 
act extending suffrage to women, acts Virginia General Assembly, 1921, chapter 
400, page 6o. J 1 


I have not the time to go into the details of the precincts at which no written 
oaths were taken, hut at McMullen, in Green County, and Monroe, where the 
contestant received large majorities, no oaths whatsoever were taken bv the 
registrar. (Rec., pp. 1720. 1733.) The same was true at Shenandoah 
in respect to a number of registrants. At Rileyville, in Page County, it ap¬ 
pears most of the registrants were not sworn. No oaths were taken from 71 
men in Luray, Page County. No oaths 
registrants at Bordens, Dry Run. St. 

County, and Furnace and Port Republic in Rockingham County 
Mr. Hudspeth. Does the constitution provide for that oath? 

Mr. Fletcher. No ; the statute does, and it may be that the oath is one of the 
things that the legislature passed in pursuance of the third clause of section 20 
of the constitution in order to have some record of a man’s conviction of a 
crime, not being disqualified under sectin 23 of the constitution on account 
of idiocy, insanity, pauperism, etc. 


were taken and subscribed from many 
Lukes, Mount Olive, in Shenandoah 


In other precincts, notably in Page, Rockingham, and Shenandoah Counties, 
and in a ward in the city of Harrisonburg, it will be found upon examination 
that while the registrants signed this written form of oath they were not 
actually sworn. I am perfectly frank and candid, and willing to say that 
I do not believe that that fact vitiates a vote, but if technicalities are being 
brought up here—if this case is to be decided by lack of observance of tech¬ 


nicalities by Democrats, the lack of observance of technicalities by Republi¬ 
cans should also receive consideration. You will find upon examination of 
the evidence that in those counties not attacked by the contestant over 1,500 
votes were polled by Republicans who had not taken and subscribed the writ¬ 
ten oaths as required by law, and over 400 had failed to take and subscribe 
the oath at all. I am, however, consistent. I do not think that this makes 
the vote of the registrant void, but I think that such a vote can not be col¬ 
laterally attacked and that the remedy is under sections 107 and 103 of the 
Code of Virginia. But irregularities on one side are just as bad as irregulari¬ 
ties on the other side. 

Now it may be contended that a notary or an officer can not show that where 
he has certified that a person was sworn, he did not actually swear him. An 
examination of the authorities will show that this is not the case. By the weight 
of authorities it can be shown by the officer or by extraneous evidence that the 
voter was not actually sworn. In the case of O’Reilly v. The People (86 N. Y., 
154) and Markey v. State (47 Fla., 38) it will be seen that it is held that the 
oath, to be an oath, must be actually sworn to. The mere signing of an oath 
is not sufficient. The same is laid down in Britt v. Davis (130 Ga., 74) and 
Matthews r. Reid (94 Ga., 461). I will not, however, dwell upon these matters. 

The Chairman. May I ask you one question there? 

Mr. Fletcher. Y^es, sir. 

The Chairman. Do you admit or deny that in Albemarle County and in some 
of these other counties complained of by contestant, applications were not made 
for the registration? 

Mr. Fletcher. l"es, sir. I admit in certain counties applications were not 
made for registration. Also in Clarke, and the record will also show that in 
•counties and at precincts where the contestant received large majorities no 
applications were taken. 

There is a contention made throughout contestant’s reply brief that because 
at the third ward in Charlottesville the son of a registrar registered certain 
registrants, such registration is void. I have not the time to go into the matter 
fully to show that the father actually did the registering and the son simply 
;ac.ted as secretary or clerk of the registrar, and I have not the time to go 


44 


PAUL VS. HARRISON. 


further and show that at the Republican precinct of Meyerhoeffer's store (Rec., 
p. 1267), in Rockingham County, a man other than the registrar registered a 
number of Republicans, and that at the Republican precinct of Lantz Mill, 
in Shenandoah County, the registrar let his father put on the registration books 
the names of the registrants, acting as the clerk of the registrar (Rec., p. 871). 

I wish to call attention to Tullos v. Lane (45 La. Annual, p. 333; 12 So. Rep., 
508). That case absolutely disposes of the contention that those particular regis¬ 
trations were void because they were not actually made by the registrar. The 
registration attacked was made under the constitution of Louisiana, precisely 
similar in all of its essential details to the Virginia constitution. Louisiana, 
like Virginia, has embodied its election laws in its constitution. In that case the 
court held as follows (points 5 and 6 of the sillabus) : 

“ Although it is grossly irregular and improper in a registrar of voters to 
place his registration books in the possession and under the control of persons 
not legally authorized to register voters, it does not follow that where such 
parties have under verbal authority from the registrar registered persons un¬ 
questionably entitled to vote; that the latter should be considered as not having 
been registered at all, and that their votes should be held illegal and thrown out. 
Irregularity of registration and utter absence of registration are different 
things. 

“ Where registration has been carried on under verbal authority from the 
’registrar by persons not having legal authority so to do, and there is no charge 
of fraud or discrimination against any voter—no allegation of injury actually 
resulting—no attempt to challenge the voters so registered or to purge the regis¬ 
tration books, voters actually entitled to vote can not after the election lie de¬ 
prived of their constitutional right to have participated therein by the simple 
fact of itself that the person who registered them was not legally authorized 
to do so.” 

In this case the court cited, if you will take this reference, McCrary on Elec¬ 
tions, page 106, who lays down the same rule that registration by another per¬ 
son than the reg'strar can not be collateraly attacked. 

Now, may it please the committee, I have not the time to dwell further upon 
this proposition. I think you all see my position and also that registration can 
not be collateraly attacked, but can only be attacked in the manner pointed out 
in the constitution of Virginia. 

Mr. Rose. Do the laws of Virginia provide for the contest of primary elec¬ 
tions? 

Mr. Fletcher. No, sir. They have no authority to do so. I have already 
pointed out in my brief that at every precinct where it was poss hie to do so 
there were partisan and bipartisan judges. 

Mr. Rose. In those laws there is no appeal from the circuit judge? It beg'ns 
and ends in the circuit court—a contest for a county or a State election? 

Mr. Fletcher. I am not prepared to say. 

Mr. Anderson. In the case of these State or higher State officers like the 
governor and other high officers, it is heard before the legislature, the general 
assembly, and in the case of certain other officers, like the superintendent of 
public instruction, it provides that the case shall be heard on appeal by three 
circuit judges. In all other cases it is tried by the circuit court. 

Mr. Hudspeth. Can it be carried to the supreme court? 

Mr. Anderson. No, sir. No contested-election case that I know of can get to 
the supreme court. 

Mr. Rose. How, then, could these matters be attacked collaterally, except 
before the house of representatives? 

Mr. Fletcher. Mr. Anderson has just stated that under section 107. In the 
first place, you can apply to the registrar to make registration, and then you 
can appeal from his decision to the circuit court, and in that case there is an 
appeal from the circuit court to the supreme court. 

Mr. Luhring. That is, in case of registration? 

Mr. Fletcher. In case of registration; yes. 

Mr. Luhring. But when that is involved in an election, of course, it is col¬ 
lateral? 

Mr. Fletcher. Yes. 

Mr. Luhring. The remedy seems to be in the beginning to purge this regis¬ 
tration list? 

Mr. Fletcher. Yes. 

Mr. Luhring. Here is a man who is not properly registered, for instance, 
who*has not made the written application, and in fact they can go into all of 
his qualifications there. Is that your contention? 


PAUL YS. HARRISON. 


45 


Mr. Fletcher. That is my contention, that it would be an absolute absurdity 
to ask this committee to come here and try the question of whether or not a 
man was physically able to make the application, to determine whether or not 
he was an idiot (which is one of the loosest terms; that is, as to what consti¬ 
tutes an idiot), whether he was insane, or ever convicted of crime, or whether 
or not he was a pauper, and if he was a pauper whether he was entirely 
dependent upon the State for support or confined in an institution. All of 
those things are determined by the voter. The voter would have to be called 
here. It was never intended that any questions like this could be collaterally 
attacked. 

The Chairman. Does what you are just saying apply to the case of a whole 
county where no attention whatever was paid to the constitutional provision 
that a person who desired to vote shoudl first make an application to be regis¬ 
tered ? 

Mr. Fletcher. It applies to the individual voter. He has some rights. 

The Chairman. I will repeat my question: Do you think that what you have 
just said applies to a case where it is admitted that the registration officials of 
an entire precinct or entire county paid no attention whatever to the pro¬ 
vision of the constitution that a man must make written application in order 
to be registered? 

Mr. Fletcher. You must remember that a large part of these voters were 
registered before 1904, and they did not have to make written applications, and 
it certainly would be unfair and unjust to that part of the electorate to reject 
their vote simply because some other registrant had not complied with the 
law, and deprive them of representation or of participation in the government. 

The Chairman. That would not apply to throwing out those admittedly 
illegal votes pro rata. 

Mr. Fletcher. You would deduct the vote there. It is admitted that you can 
destroy a man’s vote under those circumstances. You would not throw out the 
whole county. You would just throw out the admittedly defective ones. 

Mr. Gilbert. Was any attempt made by the contestee or his attorney to 
purge the list? 

Mr. Fletcher. There has never been an attempt made by anybody to purge 
these lists, and neither was there an attempt made in 1921, although this ques¬ 
tion was raised and agitated in 1920 and 1921, to purge these lists of these 
illegal voters. But the same registration books were used in 1921 that were 
used in the fall of 1920, and no attempt was ever made to strike off from those 
books the names of any individual or persons who were claimed to have been 
registered illegally or fraudulently. These same books have been used for 
years prior thereto, and at no time were they ever assailed or disputed until 
this election contest was instituted. 

Mr. Hudspeth. Is there a Republican organization in every county in this 
district? 

Mr. Fletcher. So far as I know, there is. There certainly is, to my positive 
knowledge, in Rappahannock County. I think there is a Republican organi¬ 
zation in every county. I know there is. There is a Republican organizat on 
in Albemarle County and in Clarke County. Mr. Frank Lindsey, one of the 
leading Republicans, is chairman of that committee and is one of the most 
highly respected and highly honored men in that county. The Republican 
chairman of Rappahannock County is .T. Browning Wood, who is exceedingly 
active and has held office under the Republican Party repeatedly, and who I 
think is about to hold another one. 

Mr. Luhring. The elements of legal fraud have been injected into this case. 
Take the registrar, who knowingly violated this provision and permitted a per¬ 
son who is physically able to make his own application to come in and register 
without application; is that such a species of fraud that would permit this 
committee to go into it and hold that that was not a legal vote? 

Mr. Fletcher. I think that it is not. The statute and constitution of 
Virginia provide a rigid punishment for that registrar, and under those cir¬ 
cumstances, I think that under the cases which I have cited in my brief, it 
is intended that the punishment shall be the punishment inflicted upon the 
registrar, and that it is not intended that his deliquency shall affect the voter 
who has not complied with all the requirements of the law. 

Mr. Hudspeth. Is there any evidence in this case that any legal voter ap¬ 
plied to vote and was not permitted to vote? 

Mr. Fletcher. Absolutely none. The only possible complaint that there 
might be would be in a few isolated places where some fellow might claim that 


46 


PAUL VS. HARRISON. 


lie was not permitted to vote because he had not paid his poll tax within six 
•months. With regard to poll tax, let me say that they started out with 580 
men who had not paid their poll tax. That has been reduced by the contestant 
to 106. According to my view, there are not over 25 or 30, in my judgment. 
Many of them are cases where a man thought because he served in the Army that 
he was exempt. If you will examine the vote in Clarke and Ablemarle Counties, 
and at Charlottesville, you will find the reason these men applied to vote and 
voted without paying poll tax was because they had an idea that as they were 
in a foreign country fighting for the United States, the law did not require them 
to pay the poll tax, and when they came back they did not pay it. 

Mr. Luhring. Your statute does not provide for any remedy of that kind? 

Mr. Fletcher. None whatever. 

Mr. Luhring. Where a man voted without having paid the requisite tax, 
that vote is illegal? 

Mr. Fletcher. Yes. 

Mr. Luhring. And that vote can be questioned here? 

Mr. Fletcher, There is no doubt about that. In regard to those votes set 
up by the contestant and attacked, I have not the time to go into them, but 
the keynote of my argument in my brief is that a vote is presumed to be legal 
until it is shown to be illegal, and that you must exclude every possibility of 
legality before that vote can be rejected. Applying that principle to the case 
of alleged illegal votes on account of nonpayment of poll taxes, it is my con¬ 
tention that the illegal votes because of nonpayment of poll taxes will be 
reduced to probably 20 or 25. So that is not a factor in this case. 

In regard to the effect of assistance being given to voters, we have discussed 
this fully in our brief, and for me to go into the matter again would be largely 
a question of reading from the brief. We called the attention of the commit¬ 
tee in our brief to the case of Rinaker v. Downing (54th Cong., 2 Hinds’ Prece¬ 
dents, sec. 1070, p. 587). That is a case where the House declined to overrule 
the election officers, but counted the votes of electors assisted without taking 
the preliminary oath. I also call attention to the case of Hope v. Fleutze (140 
Mo., 390) ; Hanson v. Lockhart (Tex.) (31 S. W., 547) ; Patton v. Watkins 
(131 Ala., 387) ; and Schuman v. Sanderson (Ark.) (87 S. W., 940), which are 
cited in contestee’s brief at pages 86-89. We have also pointed out in our brief 
that while it appears that assistance was given at some precincts, it appears 
from the record that the evidence of assistance was of the very loosest char¬ 
acter, and there is nothing to show who was assisted or that any particular 
voter was assisted. The general line of such testimony was that the election 
officials assisted anybody who asked them, or they would assist anybody who 
asked them, but there is no evidence that anybody who asked them was not 
entitled to assistance or not disabled or not on the old roll and therefore en¬ 
titled to assistance. But you will find a full discussion of that in the brief 
of the contestee, together with the discussion of the assistance given at the 
precincts carried by the contestant. So that if the question of assistance is 
gone into it at all, it will be found that there is no evidence as to who were as¬ 
sisted, how many were assisted, what the nature of the assistance was, whether 
persons not entitled to assistance were assisted, whether persons who were 
physically able to make up their applications were assisted; but general, loose 
evidence in respect to assistance at precints carried either by the contestant 
or contestee. • Certainly, in view of the authorities, it would not seem that 
any precinct should be thrown out on account of the mere fact that a witness 
testified that assistance was given at a precinct. There is certainly no author¬ 
ity for throwing out the vote of that precinct, unless it is shown who was as¬ 
sisted, whether they were entitled to assistance, and whether they were ille¬ 
gally assisted. 

With regard to the failure to destroy the unused ballots, in most cases they 
were destroyed, but in some cases they were taken to the clerk’s office, along 
with the used ballots, and that occurred not only in Democratic precincts but 
also occurred at Republican precincts in Page, Shenandoah, Rockingham, and 
Frederick Counties, as we have set forth on page 100 of the brief of contestee. 

In regard to the failure to string and seal the ballots: In a few precincts 
the ballots were not. strung, but it has been decided in a recent Iowa case and 
other cases, cited in the brief of contestee at pages 101-102, that the mere fail¬ 
ure to run a wire through a bunch of ballots or the failure to run a string 
through a bunch of ballots, is no reason why the election at that precinct 
should be thrown out, or the election declared void at that precinct. There is 


PAUL VS. HARRISON. 


47 


no reason or authority to declare that the failure to seal the ballot is sufficient 
to \itiate the election at a precinct. That has been ruled repeatedly by the 
House and by the court, and you will not find any case where the failure to 
seal ballots or string ballots lias been the occasion for throwing out the vote 
at a piecinct; especially where you find it the case, as it is found in this case, 
that, at every precinct that vote, was fair and honest, that every voter voted 
as he 01 she wished, that every vote was put into the ballot box and counted, 
and that the count was correct, and that the returns were correct. That, affirma¬ 
tively appears at every precinct where there is any evidence in this case. It 
is not contradicted by a single iota of evidence in this record, and there is 
nothing whatsoever in this record to impeach the validity of the ballots, their 
custody, return, or the conduct, of the election. There is not a single instance 
of a voter being deprived of his vote when he was entitled to vote, and there is 
not any instance of any undue influence being brought to bear upon this voter. 
There is not an instance at any of the 157 precincts in this district of any intimi¬ 
dation, any violence, or any disorder. Instead of that, the election passed oh 5 
quietly, orderly, and peaceably. 

The Chairman. Have you said anything about the lack of secrecy? 

Mr. Fletcher. I will come to that in a few minutes. In regard to the failure 
to return the poll book that occurred in this way : In the primary election you 
only return one poll book; in a general election you return two. Why that 
distinction is made I do not know. In Albemarle County in certain instances 
only one poll book was returned. Later, however, before or during the progress 
of this contest, both poll books were returned. There is nothing in this evidence 
to show, .lust as there is nothing in anything complained of in this case to 
show that the contestant has been injured in any respect by any of these tech¬ 
nical irregularities of which he complains. 

Now, in regard to the failure to have booths and marking ballots out of 
booths, I will concede at certain precincts there were no booths. That was 
the case both at the precincts that, were carried by the contestee and at pre¬ 
cincts which were carried by the contestant. But in every instance there is in 
this record affirmative evidence to the effect that the voter marked his ballot 
as he wished and voted as he wished, and there is no instance where he was 
deprived of his right to vote in secret. 

The Chairman. How could he vote in secret if there was no suitable place 
provided ? 

Mr. Fletcher, The evidence shows in the Democratic precincts that there 
was a table very frequently in the back of the room to which he could repair 
and mark his'ballot without interference from anyone, and without anybody 
seeing him, only one person being allowed in the room at a time. 

Now I have taken up that question and shown that in precincts carried by 
the contestant and in precincts carried by the contestee occasionally there were 
no booths, but in the majority of cases there were. Take, for instance, the 
precinct of Ottobine, where the vote was 102 to 300 and something, the con¬ 
testant receiving a majority of over 200. In that case there was a frame of a 
booth, but no curtain on it. But at the same time I do not contend that the 
vote there was illegal. Under the authorities the mere failure to have booths 
does not vitiate the election. 

Mr. Hudspeth. At those places where they did not have booths is there any 
evidence to show whether there had been any booths there for the last 15 or 
20 years? 

Mr. Fletcher. In some cases there was never any booth there, just little 
rooms. In Iowa, Oregon, Alabama, California, North Dakota, Texas, Washing¬ 
ton. and other States, it has been held that the failure to have booths does not 
vitiate the poll especially where there is no injury shown to the parties. I 
refer to the cases cited on pages 106 to 108 of the contestee’s brief. 

In regard to marking ballots out of booths, that was one of the hues and cries 
raised by the contestant in this case. In taking evidence in Albemarle and 
Clarke Counties, and at Charlottesville and other places, the fact that a man 
marked his ballot out of a booth was a heinous crime, and almost an unmitigated 
offense, but when the evidence was taken in Harrisonberg, that classic city 
where the normal school is situated—the Athens of the valley—it was found 
that the contestant had marked his ballot out of the booth. In other words, 
this election reformer, criticizing the Democratic communities on account of 
their failure to comply with the laws of Virginia, holding up Albemarle and 


48 


PAUL YS. HAERISOJST. 


Clarke Counties as having been guilty of every crime in the category under the 
sun for the reason that they did not mark their ballots in the booth, for the 
reason that ballots did not have a string strung through them, and every¬ 
thing of that kind, was found to have marked his ballot in the open and out 
of the booth. 

So, gentlemen, while I do not think that failure to mark the ballot in the 
booth vitiates the election in any way, yet at the same time precedent has been 
set for it by the contestant in this case. 

Mr. Hudspeth. Who carried the election at that box? 

Mr. Fletcher. The contestant. We are not complaining of it. In the case of 
Brown v. Swanson, a Virginia case (55th Cong., 2 Hinds’ Precedents, sec. 1108, 
p. 560), cited on page 108 of contestee’s brief, it will be found that the identical 
question of marking a ballot out of a booth has been considered by Congress. 
While that occurred before the adoption of the present constitution, at the same 
time, the statute providing for the marking of ballots in the booths was abso¬ 
lutely the same as the statute which now obtains. In the case of Brown v. 
Swanson it was held that the fact where the man marked his ballot out of 
the booth or showed or exposed his ballot did not vitiate the ballot but that the 
ballot was legal. The committee said—and it was a unanimous conmmittee: 
“ The Virginia law provides for secret voting, but the secrecy is for the pro¬ 
tection of the voter and is not compulsory as to him. There is nothing in the 
law prohibiting the voter from displaying his ballot after it has been prepared, 
provided he does not do it for corrupt purposes. v 

Take the complaint of contestant in respect to the failure to call in watchers 
as to the count. There is no reason for me to argue this point; because, as we 
have stated on pages 112-113 of the brief of contestee, the failure at certain 
precincts to have watchers at the count resulted solely from the fact that at 
the time the count took place the voters had all gone home and there was no one 
to call in. Under those circumstances, can there be complaint for failure to call 
in watchers? 

In regard to the ballot box being in public view, there was a great deal said 
about that in contestant’s brief. My construction of the constitution is that the 
ballot box simply has to be in sight of the voter, and also in the election office. 
It does not require it to be in sight of the populace. There is one other question 
I wish to call attention to; and I do not believe that Col. Anderson, had he 
read the record in the case, would have made the statement that the judges 
examined the ballots before putting them in the ballot box. While the charge 
in respect to that was made in the notice and denied in the answer, it was only 
attempted to be proved by contestant in Albemarle County. In every case he 
singularly failed. The only case where it is claimed by contestant in his brief 
to have been done was in the case of a man named Burks, at Wingfields, and it 
is plain that he referred to opening the ballot when the count took place. I 
refer to page 117 of the contestee’s brief. 

Mr. Hudspeth. How about withholding the returns? 

Mr. Fletcher. There is no evidence of that, and you can read that record and 
find out that there is none, and the gentleman was mistaken when he made the 
statement. 

Mr. Anderson. What is that? 

Mr. Fletcher. There is no record that the ballots were held after the election. 

Mr. Anderson. There is one case where it was held for 36 hours. 

Mr. Fletcher. There is no evidence in the record to show that. The record 
shows to the contrary. (See pp. 211-215 of record.) But suppose, for the sake 
of argument, that the returns were not sent to the clerk’s office for 36 hours. 
The election is held on Tuesday and the canvass is required to be on Thursday, 
and I know of no reason why the ballots should be returned on the night of the 
election. In country communities remote from the county seat it is sometimes 
almost impossible to return the ballots in any very limited space of time, and the 
law gives them three days. It gave them until the Thursday after the election to 
return the ballots to the clerk’s office, and it is a matter of common practice on 
the Thursday after the election for the ballots to be taken to the clerk‘s office, 
and there is nothing in the law requiring them to be returned before that day. 
But when the record is read it will be seen that the complaint in respect to 
Ivy is not justified. 

(Thereupon the committee adjourned.) 


PAUL YS. HARRISON. 


49 


Committee on Elections, No. 1, 

House of Representatives, 
Wednesday, February S, 1922. 

, committee met, in the committee room, House Office Building, at 10.30 
o clock a. m., Mr. Dallinger (chairman) presiding. 

Mr. Harrison. Mr. Chairman, before I begin with my statement, I want to 
submit a request to the committee. Mr. Fletcher, who discussed yesterday with 
some elaboration the question of collateral attacks on judgments, etc., has a 
very elaborate note of authorities on that subject, and as he is a distinguished 
and able lawyer I would like to have permission to incorporate those authorities 
in the record. 

The Chairman. How long is the statement? 

Mr. Harrison. How long is the memorandum and authorities and brief in 
regard to collateral attacks? 

Mr. Fletcher. I suppose it is 10 or 15 pages long. 

The Chairman. You desire to exten 1 that as a part of your argument? 

Mr. Fletcher. Yes. 

The Chairman. If there are no objections, that may be done. Have you any 
■objection, Mr. Faul? 

Mr. Paul. I do not know what they embrace. * 

The Chairman. He asks to extend as a part of his argument in the record 
some authorities on the question of collateral attack. 

Mr. Paul. Delivered by whom? 

Mr. Fletcher. It is a memorandum I had yesterday, but did not have time 
to give the authorities. It is on the question of collateral attack. 

Mr. Paul. We will have the right to submit others? 

The Chairman. Certainly. It is understood that Mr. Paul will be permitted 
to do the same. 

Mr. Fletcher. Yes. It is just on the legal proposition. 

The Chairman. They may be inserted as requested. 

(The documents referred to were subsequently submitted and are here printed 
In full, as follows :) 

Supplementary Brief Filed ry Contestee on the Doctrine of Collateral 

Attack. 

In Saunders v. Terry (116 Va., 495), the court said: “The judgment though 
erroneous and voidable if assailed in a direct proceeding for that purpose, 
is effective unless and until set aside and may not be callaterally assailed, 
citing among other authorities Lancaster v. Wilson (27 Gratt., 629). where the 
court, speaking with respect to collateral attacks on judgments, said: ‘It is 
not merely an arbitrary rule of law, established by the courts, but it is a 
doctrine founded upon reason and the soundest principles of public policy. 
It is one which has been adopted in the interest of the peace of society and 
the permanent security of titles.’ ” 

The case of a registrar placing upon the registration book the name of a 
person who is required to make an application, but has not made one, is 
very analogous to the appointment of an infant as administrator of an estate 
when the infant, under the laws of the State is ineligible to appointment 
and incompetent to act as administrator. Under the laws of Virginia and 
West Virginia a minor is incompetent to administer upon the estate of a 
decedent. (Thompson v. Nowlin, 51 W. Va., 346; 41 S. E., 178; Saun v. Coffelt, 
79 Va., 510.) But it is held in both of these States that the appointment can 
not be collaterally assailed. 

Thus in Tomlin r. Peck (73 W. Va., 336: SO S. E., 450) it was held that an 
infant improperly appointed administratrix is, nevertheless, an administratrix 
de facto, and her acts as such are valid and binding, and the appointment 
can not be collaterally attacked. The court said: 

“Though an infant is ineligible to appointment as a personal representative 
and can not be empowered to enter into contracts as personal representative 
or otherwise, by an authorized appointment, the appointment itself can not 
be collaterally assailed or treated as void. * * * And a person appointed 

administrator in a county in which the decedent left no estate, wherefore 
the appointment was improper and unauthorized, it can not be collaterally 
assailed. (Fisher v. Bassett, 9 Leigh, Va., 119.) 

93942—22-4 



50 


PAUL VS. HARRISON 


“ Of course an appointment made by a court having no authority to appoint 
an administrator or executor in any case or under any circumstances is abso¬ 
lutely void. But when the appointment has been made by a court having 
jurisdiction and power to make such appointments in proper cases, and the 
propriety of the appointment depends upon facts to be ascertained by such 
court, its action is conclusively presumed to have been proper in all col¬ 
lateral proceedings. In other words, the appointee is administrator or execu¬ 
tor, as the case may be, de facto, and all his acts are valid until the appoint¬ 
ment has been rescinded or abrogated in some way.” 

The true rule which suggests itself to my mind is that where a court or any 
tribunal has jurisdiction and power to do a certain act and the validity of 
that 'act and its judgment is assailed on the ground that the court or tribunal 
acted improperly and illegally, if it is necessary to go outside of the record 
and make inquiry into the facts in order to determine such impropriety or 
illegality, then such judgment can not be collaterally attacked. 

In the case of registration the action of the registrars in placing the name 
of the registrant upon the registration books is his judgment that the registrant 
has complied with the registration laws and is qualified to register. Suppose 
this registration is attacked and the tribunal passing upon the same finds no 
application. Has such tribunal on this record the right to say that the regis¬ 
tration is void beca'use of this fact? Certainly not, for the Constitution pro¬ 
vides that the applicant for registration need not make a written application 
if he is physically unable to do so, and whether or not he is physically unable 
is a question of fact which must be inquired into, and the tribunal passing 
upon the question must go into these facts in order to determine the necessity 
of the application in writing. 

This question was considered by the Court of Appeals of Virginia in Fisher 
v. Bassett (9 Leigh (Va.), 119), where the county court of Middlesex County, 
Va., granted administration upon the estate of a foreigner, who died abroad 
and who had no residence in the county at the time and had no estate of any 
kind there, so in truth the state of the facts was not such as to give the court 
jurisdiction to grant administration in. the particular case, according to the 
statute. 

Judge Tucker said: “ The county court is a court of record and its judg¬ 
ments or sentences can not be questioned collaterally in other actions provided 
it has jurisdiction of the cause. * * * And this is to be understood as 

having jurisdiction over the subject matter, for though it may be that the 
facts do not give jurisdiction over the particular case, yet if the jurisdiction 
extends over that class of cases the judgment can not be questioned, for then 
the question of jurisdiction enters into it and becomes an essential part of 
the judgment of the court. Thus, if a county court were to give judgment 
of death against a white man, the sheriff would have no lawful authority to 
execute him; or if a court of chancery were to grant probate of a will, it 
would be ipso facto void, since that court had no jurisdiction in any case of 
probates. It is held void ipso facto, because no inquiry is necessary to ascer¬ 
tain its invalidity. But where the court has jurisdiction of cases ejusdem 
generis, its judgment, in any case, is not merely void, because its invalidity 
can not appear without an inquiry into the facts, an inquiry which the court 
itself must be presumed to have made, and which will not, therefore, be per¬ 
mitted to be revived'collaterally,” (See, also, Hutcheson v. Priddy, 12 GratL 
(Va.), 85.) 

When a court has general jurisdiction over a given subject matter, i. e., 
over a certain class of cases, its judgment in a case which falls within that 
class is conclusive until set aside by some proceedings in the same or an 
appellate court; it can not be questioned in any collateral proceeding, and this 
is true, although the facts of the particular case are not such as to give the 
court jurisdiction in that case. 

A judgment of a court of general jurisdiction can not be attacked for in¬ 
sufficient notice to the defendant, unless want of notice appears on the face 
of the judgment or by other documents constituting a part of the record in 
the case. (Carr v. Miller, 58 Tex. Civ. App., 57; 123 S. W., 1158.) 

Where the record of a judgment in a court of general jurisdiction does not 
show service it is not for that reason void on its face, and the only remedy of 
a party claiming not to have been served is by direct proceedings to have the 
judgment set aside. (Googler v. Crosby, 89 S. C., 508; 72 S. E., 149.) 

In Saunders v. Link (114 Va., 285; 76 S. E., 327) it was held that the judg¬ 
ment of a court of general jurisdiction acting within its jurisdiction is presumed 


PAUL VS. HARRISON. 


51 


to be correct, and can not be collaterally impeached unless want of jurisdiction 
appears on the face of the proceedings. 

By the weight of authority a judgment can not be collaterally attacked by 
a party on the ground that an appearance of an attorney for him was unauthor¬ 
ized. (Scott v. Royston, 223 Mo., 56S; Cigler v. Keinath, 1G7 Ill. App., 65; 
Robrabacher v. Walsh, 170 Mich., 59, 135 N. W., 907; State v. Mineuch, 119 
N. Y. Supp., 713.) 

A judgment rendered for or against a party after his death is not for that 
reason void. The judgment though erroneous and voidable, if assailed in a 
direct proceeding for that purpose, is effective, unless, and until, set aside, and 
it can not be attacked collaterally. (Robinette v. Mitchell, 101 Va., 762.) 

A judgment against one insane at the time it is rendered is not void, and 
can not be collaterally attacked, and not being void is a lien on land. (Watt v.. 
Brookover, 35 W. Va., 323, and cases cited therein.) 

A judgment is not void, so as to be subject to collateral attack, unless the 
infirmity appears on the face of the record. (White r. Saggs. 56 Ind. App.,, 
708 ; 104 N. E., 55. ) 

The judgment is not void unless the thing lacking or making t so is appar¬ 
ent on the face of the record. (Larimer v. Krau, 57 Ind. App., 33; 105 N. E.,. 
936.) 

In 23 Cyc., page 1062, it is said: “The rule against collateral impeachments 
of judicial decisions applies to the determinations of State and county officers, 
or boards of officers, who although not constituting a court are called upon to 
act judicially in matters of administration, such as boards of county commis¬ 
sioners. boards of land commissioners, or railroad commissioners, or a State 
board of equalization.” 

Thus an order of a board of supervisors declaring an abandoned street rail¬ 
road a nuisance, and ordering its removal, is not subject to collateral attack in 
mandamus proceedings. (Wright r. Edwards Hotel, etc., Co., 101 Miss., 470; 

• 58 So., 332.) 

In Tomlin v. Peck (73 W. Va., 336 ; 80 S. E., 450) it was contended that the 
county court appointing an infant administratrix no longer had any judicial 
power. The court said : 

“ It is sa d they no longer have any judicial power, nevertheless, whether 
the functions he executive, administrative, or legislative, they have general 
power and jurisdiction to appoint executors, administrators, guardians, cura¬ 
tors, and committees, and admit wills to probate. This involves a judicial 
function; though they are courts of limited jurisdiction, they are nevertheless 
courts of record, and their acts in the exercise of the jurisdiction they have are 
entitled to the same presumptions of regularity as are involved and applied in 
support of the acts of courts of general jurisdiction.” * * * 

That the method prescribed by sections 107 and 103 of the Code of Virginia 
for the correction of illegal or fraudulent or improper registration affords ade¬ 
quate and complete relief, and that registration can not be collaterally attacked 
would seem to be settled by the Supreme Court of Virginia in the case of 
Spilter v. Guy (107 Va., 811), decided in 1907. The petitioners for the writ 
of mandamus filed an original application for mandamus in the supreme-court 
charging that the registrars of two wards in the city of Staunton had wrong¬ 
fully and unlawfully registered in the registration books numerous white and 
colored voters, whose names were enumerated, who had not paid the poll tax 
assessable or assessed against them six months prior to the regular election in 
November, 1907, to wit, May 6. but had registered said persons on the books 
aforesaid since May 6, 1907, and within such period of six months of sa d elec¬ 
tion ; and that said persons had not on May 6, 1907, paid the poll taxes assessed 
and assessable against them, but the said taxes had been paid since May 6, 
1907, and the prayer of the petition was that the registrar might be compelled 
by mandamus to erase the names of such persons from the registration books. 
The defendants demurred on several grounds, but especially and particularly 
because the petitioners had an adequate remedy under section 86 of the code 
(which corresponds to sec. 107 of the present code with some amendments), 
and also because the duty devolved upon them involved the exercise of judg¬ 
ment and discretion. The court refused the writ of mandamus, stating in its 
opinion that “ the petitioners had an adequate remedy by virtue of sections 86 
and 83a of the Code of Virginia, and upon the authority of Eubank v. Boughton 
(98 Va., 499; 36 S. E., 529), the prayer for a writ of mandamus is denied.” 

The case of Eubank v. Boughton, upon which the court based its opinion, was 
a case where a man applied for a writ of mandamus, alleging that he and his 




52 


PAUL VS. HARRISON. 


wife were white and asking for a writ of mandamus to compel the respondents, 
the school trustees, to receive Iris sons in a school set apart for white children. 
The court, in denying the writ, said: 

“ The writ of mandamus is the appropriate means of compelling the perform¬ 
ance by a public officer of a duty which is either imposed upon him by some 
express enactment or necessarily results from the office which he holds. It 
does not lie in any matter requiring official judgment or resting in the sound 
discretion, for in such case the court can do no more than compel the officer to 
nxercise his function according to some discretion where he has refused or 
neglected to act at all. By it an inferior court may be directed to hear a case, 
but the decision to be rendered can not be affected. It is the duty of the board 
to assign white children to schools for white children, and it is none the less 
their duty to assign colored children to the schools for colored children. When 
the question arises as to the color of a particular applicant, the board must 
take evidence and make such disposition of the matter as it shall deem right. 
Here, then, is a duty which calls for the exercise of judicial discretion. It is 
true that where the fact is ascertained the duty is plain. When the status of 
the applicant is fixed by a judgment upon the evidence, the law itself assigns 
him to the proper school. The law has seen fit to confide the determination 
of the question to a board of school trustees, and the discharge of the duties 
thus imposed upon the board involves, as we have seen, the exercise of a judi¬ 
cial discretion, and the court can not control its exercise. If petitioner felt 
himself aggrieved by its action, he had a right to appeal to the county superin¬ 
tendent of schools. So there are two grounds upon which the judgment com¬ 
plained of must be reversed. It undertakes to control the official judgment of 
the board of trustees in the exercise of a discretionary power specially confided 
in them by statute, and the petitioner is given a remedy by appeal to the 
county superintendent. * * * Where a person aggrieved by the actnn of 

a board of school trustees has an adequate remedy by appeal to the county 
superintendent, he is not entitled to the writ of mandamus. * * * ” 

This is the case upon which the Supreme Court of Virginia, in Spilter v. 
Guy, based its opinion, and in Spilter v. Guy it was plainly held that the duty 
devolved upon the registrars by the constitution involved judgment and 
discretion, and also that under sections 107 and 103 of the Code of Virginia 
there was an adequate remedy to remove from the registration books the names 
of persons illegally, improperly, or irregularly registered. 

That the registrar must exercise judgment and discretion in registering 
voters is evident from several provisions of the constitution. Thus section 20 
provides that in order to register the applicant must have (1) paid all 
requisite poll taxes; (2) unless physically unable, must make a written appli¬ 
cation; (3) must answer on oath any and all questions affecting his quali¬ 
fications submitted to him by the registrar, which questions and answers 
thereto shall be reduced to writing and preserved as a part of the official 
records. 

The registrar may refuse registration to any registrant who fails to comply 
with these conditions. Indeed, if the contention of contestant be correct, 
that this section of the constitution be deemed mandatory, he must refuse 
such registration. In case of an applicant for registration claiming the right 
to register without making written application, on the ground of physical 
inability, the registrar must determine whether such “ physical inability ” 
exists. If it does, he can not require an application; if it does not, an appli¬ 
cation is requisite. Necessarily, in determining this the registrar acts judi¬ 
cially. There is no provision in the constitution for placing in the records 
data in relation to physical inability rendering written applications unnec¬ 
essary. This is left solely to the judgment of the registrar, subject to be 
reviewed in the manner provided by legislation passed in pursuance of the 
provisions of section 25 of the constitution, providing that the legislature 
shall provide for the annual registration of voters, for an appeal by any per¬ 
sons, denied registration, and also for the correction of illegal or fraudulent 
registration. 

REGISTRATION BOOKS OPEN FOR PUBLIC INSPECTION. 

Section 104 of the Code of Virginia provides that the “ registration books 
shall at all times be open to public inspection.” Under the corresponding 
section in the prior code of 1904, section 84, it was held in Clay v. Ballard 
<87 Va., 787), that this statutory provision that the registration books be open 


PAUL VS. HARRISON. 


53 


at all times to inspection was intended as a safeguard against fraud and must 
be liberally construed. 


Reply 


Brief of the Contestant on the Question of Collateral Attack. 


In the argument of this case, the question of the validity of the registration ot 
certain voters was discussed at length. Supplementing the concluding brief 
in that case on this point, we desire to suggest the following additional au¬ 
thorities : 

Section 20 of the constitution of Virginia provides that after the 1st day of 
January, 1904, every male citizen of the United States, having the qualifications 
of age and residence required in section 18, “ shall be entitled to register” pro¬ 
vided— 

First. That he has paid poll taxes as prescribed in clause 1 of the section. 

Second. That unless physically unable, “he make application to register in 
his own handwriting without aid, suggestion, or memorandum in the presence 
of the registration ffilicers, stating therein his name and certain other facts.” 

Third. That he answer under oath all questions affecting his qualifications as 
elector submitted by the registrar, “ which questions and his answers thereto 
shall be reduced to writing, certified by said officers, and preserved as a part of 
their official records.” 

These provisions of the constitution are mandatory, and would seem too clear 
for argument. This is settled by numerous authorities cited in our closing 
brief, pages 18 to 31, inclusive. 

Under these provisions there are three classes of registration assailed in the 
record : 


(1) The large number of persons who were registered without any written 
application whatever. These registrations we claim to be void ab initio. 

(2) Persons who were registered with the aid and assistance of the registrars 
or some other person, as shown by the evidence. These registrations we claim 
to be void on the ground that the constitution is mandatory that the applica¬ 
tion must be made “ without aid, suggestion, or memorandum,” which is binding 
upon both the proposed registrant and the officers of the election, and if they 
unite in violating this law, they are both guilty of legal fraud, which vitiates 
the application, and it stands as if no application whatever had been made. It 
is different from a case where the election officer is guilty of a fraud which 
defeats the voter’s right. Here both the proposed voter and the election officer 
participate in a fraud to defeat the law. If such registrations were sustained 
they would be worse than registrations without any application, since it would 
enable the registrars to register those persons whom they desired to vote and 
deny registration to those whom they did not desire to vote. This would defeat 
the entire purpose of the registration law. 

(3) In those cases in which written application was made, but the application 
failed to set out all of the facts required by clause 2 of section 20 but was 
accepted by the registrar and the person registered and voted. It is claimed by 
the contested that if the provision is mandatory these votes are void, while 
contestant claims they are only voidable by challenge before the vote is cast 
and must be counted if the vote has been cast, canvassed, and returned and 


their votes included. 

As to the first class, it would seem that there could be no serious controversy 
that the registration was void ab initio, and the vote of such registrants void 
and must be thrown out. 

As we have said, the provision of the constitution is mandatory, and it is 
the universal holding that where such provisions are not substantially com¬ 
plied with the vote is entirely void. 

In the Suffolk local-option case (17 Va. Law Register, 353) the court, in 
discussing this question, held that the constitutional provision was organic 
and mandatory, and “ the observance thereof on the part of the voter necessay 
in order to give jurisdiction to the registrar to act.” 

In other words the action of the registrar under 
stitution is quasi judicial, and his jurisdiction does 
power in the premises unless a written application be filed by the person 
applying for registration in accordance with the provisions of the constitution. 
This view has been followed by Judge Barksdale in the circuit couit of Lunen¬ 
burg County in Stokes v. Hatchett (18 Va. Law Register, 251), and by Judge 
West in the circuit court of Princess Anne County in the case of Simmons v. 
Lamb, cited and reviewed in the briefs. In the case of Anderson v. Craddock 


this provision of the con- 
not attach, and he has no 


54 


PAUL VS. HARRISON. 


Judge Christian, of the corporation court of Lynchburg, held the provision 
directory, which is clearly contrary to the almost universal line of decisions 
and to the language of the constitution itself. Since contested election cases 
can not be taken to the supreme court of appeals in Virginia the decisions of 
these circuit courts are the decisions of the highest courts having jurisdiction 
thereof in this State, and the decision by three circuit courts, the judge of 
one of which is now on the supreme court of appeals, should be accepted as 
conclusive as the law in this State until the question is determined by the 
supreme court of appeals should it ever reach that court. We submit, there¬ 
fore, that the question is not open for argument in Virginia. 

Should the committee, however, desire to go further into this question, the 
following authorities are conclusive that where a registration is required by 
the constitution or statute, such registration is essential to the qualification 
of the voter and unless so registered the vote must be disregarded. See Smith v. 
Skagit County, 45 Fed., 725; State v. Ensworth, 44 Mo., 346; State v. Hyland, 
57 Pac., 814; Falltrick v. Sutherland, 51 Pac. Rep.. 947; Attorney General v. 
Seavitt, 53 N. W., 944. 

This last case also holds that an elector must enter the booth alone and 
prepare and cast his ballot without disclosing it to others, since these provisions 
are mandatory. Under this authority a large number of precincts, where the 
evidence is uncontradicted; that the ballots were prepared in the open and often 
with the assistance of the judges and other persons, where the constitution 
requires that the voters must take their ballots into the booths and prepare 
them, would have been thrown out. See also 15 Cyc., 308, where the general 
principle is stated as follows: 

“ Where a State constitution or a positive statute not in conflict therewith 
makes registration a specified time before election day an imperative prerequi¬ 
site to the right to vote, those who are not so registered can not vote, whatever 
may be their other qualifications; but unless the constitution or a valid statute 
makes prior registration imperative, if an individual voter offers to comply 
with the regulations in reference to registration, and is prevented from such 
compliance by the wrongful act of the registrars, his vote should unquestionably 
be counted, provided he is a qualified elector, and appears on election day and 
offers to vote. In some jurisdictions it is provided by statute that nonregistered 
electors may vote upon the presentation of evidence of their qualifications on 
election day.” (Collecting authorities.) 

See also 20 C. J., sec. 54, p. 82. 

As to the second class (registrations with assistance), the principle of law 
is well settled that where both parties cooperate in violating the law it is a legal 
fraud and no right can arise therefrom. We do not deem it necessary to extend 
the discussion on this point. The constitutional provision is equally binding 
upon the applicant for registration and the election officer and if in voilation of 
its principle and absolute mandate assistance is given and persons are thus 
registered contrary to the law, the application so made out is in effect no appli¬ 
cation, and they stand exactly as if no application had been filed and no regis¬ 
tration had been made. This would seem to be too elementary to require any 
discussion. 

As to the third class (cases in which written application was filed but failed 
to contain certain detailed information required by the constitutional pro¬ 
vision), the second and third clauses of section 20 of the constitution must be 
considered together. Where a person is physically unable to make out the 
application it is clearly contemplated that the registrar shall under the third 
clause obtain the information required in the application by inquiry and re¬ 
duce the questions and answers to writing and preserve the same in lieu of 
the application. In like manner if the registration officer accepts a written 
application which does not contain all of the information prescribed in clause 
2, he must if he fills out the blanks on his registration books obtain that in¬ 
formation by inquiry under clause 3. The purpose of the clause is to estab¬ 
lish an educational qualification of ability to read and write. An application 
which may not contain all of the information specified would demonstrate this 
qualification. The information specified is merely to give the data necessary 
to be entered on the registration book. Once the written application has been 
filed the jurisdiction of the registrar attaches and if he fails to secure the in¬ 
formation necessary for the complete data required by the constitution of the 
registrant it is not void but only voidable for negligence of the officer. Since 
the educational qualification has thus been established by written application, 
the detailed information set out in the section can readily be inserted, since 





PAUL VS. HARRISON. 


55 


the registrant under the opinion of the Attorney General cited by contestee is 
entitled to have the law before him when he makes his application, and the 
omission to state all the details is merely an omission in unimportant details 
which can readily be supplied by the registrar if lie desires it under the next 
clause. These details, therefore, do not come within the usual definition of the 
mandatory provisions, but belong to that class of ihinutise in carrying out the 
provisions which render the registration not void but wholly voidable. In other 
words, the essential provision establishing the educational qualifications of abil¬ 
ity to read and write, which is a condition precedent to the jurisdiction of the 
registrar, is made by the application, although some of the minutiae or details 
of information specially for the benefit of the registrar are not included in such 
written application. The courts very generally hold that the omission of such 
details renders the act voidable and not void. 

Thus in 20 C. J., p. S2, sec. 54, it is said: 

“ The general rule is that a law requiring the registration of voters as a con- 
dition precedent to holding an election is mandatory, and any attempted elec¬ 
tion without regard to such registration law is a nullity. But exceptions to the 
rule have been recognized under particular circumstances or under particular 
statutes, and it must be remembered that there is a vast difference between an 
irregular registration and a total absence of registration.” 

People v. Earl (42 Col., 238; 94 Pac., 294). 

Huffaker v. Eddington ( 30 Idaho, 179; 163 Pac., 793). 

A good illustration of this distinction may be seen in the decision of the 
Supreme Court of North Carolina. Thus in Harris v. Scarborough there was a 
provision that “ no person shall be allowed to vote without registration,” and 
that “ no registration shall be valid unless it specifies as near as may be the 
age. occupation, place of birth, place of residence of the elector,” as well as 
certain other facts. Here was an absolute provision that a registration should 
not he valid without the express statement of these facts, and the court held it 
to be void unless those facts were stated. 

In the subsequent case of Woodhall v. Western, Etc., Commission (97 S. E., 
226), the court held that where it appeared that a person had registered but 
had not “ complied entirely with the requirements of the registration law ” that 
the vote could not be thrown out as illegal. The court said: 

“ Where a voter has registered, but registration books show he had not com¬ 
plied with all minutiae of registration law, his vote will not be rejected as 
illegal. Such legislation is not to be regarded as hostile to the free exercise 
of the right of franchise, and should receive such construction by the courts as 
will be conclusive as to a full and fair expression of the will of the qualified 
voters.” (Citing authorities.) 

The same principles apply in this case. Without a written application an 
essential provision prescribed by the constitution necessary to establish the 
educational qualification of ability to read and write has been omitted and the 
jurisdiction of the registrar lias*never attached. His act in registering a voter 
is void ab initio, but after the jurisdiction has attached the failure to comply 
with some minute detail which presumably was remedied by inquiry under 
the next section, or which the registar had the power to remedy by such inquiry, 
would not void the registration but only make it voidable when attacked by 
challenge or in the method required by statute prior to the casting of the vote. 

The case of Rail v. McCowan (97 S. C. I.; 81 S. E., 958), cited and relied 
upon by counsel for contestee, is another case illustrative of the distinction 
which we now draw. In that case the court rested its decision on the point 
under consideration not upon the provision of the constitution as indicated 
bv counsel but upon the act of 1896, which expressly provided that “the 
boards of registration should be judge of all the applications for registration,” 
and o-ave an appeal to the courts from the decision of such boards. The court 
held^that under this provision of the law the entire registration would not 
be held invalid because the board had failed to appl^ the test of qualification 
prescribed by the constitution and statutes, and to administer the prescribed 
oath to those applying for registration, since to do so would be to deprive 
le-al electors of their right to vote for the misconduct of the officers. In fact 
the court held that this was a judicial proceeding with right of appeal 
from the decision of the registration board to the courts, and they having 
jurisdiction of all applications to register, written application not being re¬ 
quired under the constitution, there must be an appeal on this point, since they 
were expressly made the judges of the qualifications to register. 



56 


PAUL VS. HARRISON". 


Under the constitution of Virginia the qualifications are prescribed, and the 
only duty of the registrar is to ascertain if those qualifications exist. He has 
no right to make the inquiries until the written application is filed, but if that 
application is once filed and his jurisdicton attaches, then he has the right under 
the last clause of the section to make inquiry as to these qualifications, 
preserving his questions and answers as a part of the record, and thus to 
cure any defects in the details or minutiae required in the application. 

See to the same effect, illustrating this principle, State v. Baker (38 Wis., 87) ; 
People v. Wilson (62 N. Y., 186, 196) ; Bryer v. Sevigney (106 Atl. (R. I.), 155), 
where the subject is admirably discussed and authorities collected. 

An instructive analogy upon the point now under consideration will be found 
in the case of void and voidable judgments of courts of record. It must be 
recalled that under this constitution and the statutes of Virginia the courts 
have held that the registrar acts judicially and that the written application 
is essential to the jurisdiction. . A court of record is in exactly the same situa¬ 
tion. It is elementary law that where the court has never acquired juris¬ 
diction either of the subject matter or parties, a judgment is void ab initio 
and may be attacked collaterally or utterly disregarded; while on the other 
hand, if the court has jurisdiction of the subject matter and parties upon 
defective pleading it may be the ground for reversal or appeal, but a judgment 
so rendered on such defective pleadings is not subject to collateral attack. If 
authorities be needed in the illustration of a principle so well settled, the 
following are referred to: 

Decision of the Supreme Court of Appeals of Virginia holding that a judg¬ 
ment or decree of a court entered without jurisdiction of the parties is void 
ab initio, and subject to collateral attack (Underwood v. McVeigh, 23 Gratt. 
409; Blanton v. Carroll, 86 Va. 539, 541), where the court said: 

“ When the record shows in any court, whether superior or inferior, that 
the court has proceeded without notice, any presumption in its favor is at 
an end, and it may not only be reversed as erroneous, but be impeached and 
set aside collaterally as void. (Citing authorities.) The rendition of a judg¬ 
ment against a party not before the court in any way will be as utterly void 
as -though the court had undertaken to act when the subject matter was not with¬ 
in its cognizance. * * * This is the rule with reference to all courts, with 

only this difference: that the jurisdiction of a superior court will be pre¬ 
sumed until the contrary appears, whereas an inferior court, and those claim¬ 
ing under its authority, must show that it had jurisdiction.” 

See also Stanton, &c., Co. v. Hayden, trustee, (92 Va., 201). 

On the other hand, authorities holding that the judgment is voidable and 
not subject to collateral attack where jurisdiction is once acquired even on 
defective pleadings, are numerous. Among them the following may be cited: 
Cooper v. Reynolds, (10 Wall., 308) ; Robinetts, Admin., v. Mitchell, (101 Va., 
762) ; Fulkerson v. Taylor, (102 Va., 314) ; Shepherd v. Starbuck, (118 Va., 
682) ; Hansford v. Tate, (W. Va., 56 S. E. 372). 

The principles laid down in these authorities with respect to judgments 
are analogous to and have a direct bearing upon the question here at issue. 
In every case attacked by contestee the written application essential to show 
the educational qualification contemplated by the constitution was made. 
If it were defective, the registrar had the right to review it and require the 
details to be stated, or he had the right to ask questions under the next 
clause to remedy such defects. The jurisdiction of the registrar had thus 
attached, although upon a defective application, and the registration based 
thereon was valid unless attacked in the manner prescribed by law. It would 
then have been held voidable upon proper attack. On the other hand, if there 
was no application, or a fraudulent application resulting from assistance be¬ 
ing given and accepted contrary to the express mandate of the constitution, 
then the jurisdiction of the registrar never did attach, and the registration 
was void ab initio. Any vote voted upon such registration was void and must 
be thrown out in ascertaining the results as was held by Judge McLemore in 
the Suffolk election case, and has been followed by Judges Barksdale and 
West in the cases cited. 

The presentation of these authorities on registration would seem to settle 
the question as to the votes attacked on this ground, and to require the com¬ 
mittee to throw out all votes cast upon registrations without application or 
made with assistance, but to admit all votes cast upon written registrations 
based upon written applications which may have been defective as to de¬ 
tails or minutiae. We submit, however, that a reading of the authorities 



PAUL VS. HARRISON. 


57 


aboxe cited on these points will demonstrate clearly our further contention 
that as to a large number of precincts—Albemarle, Charlottesville, Clark, 
b rederick, and the city of Winchester, the entire precinct must be thrown 
out on account not only of illegal registrations of a large proportion of the 
voters, but of other irregularities, such as the open marking of ballots, es- 
sistanee by judges in marking ballots, violation of secrecy of the ballot, and 
other provisions of the constitution which are mandatory in character and 
so affect the election as to make it no election at all within the contempla¬ 
tion of the constitution. Throwing out these precincts which are discussed 
in the closing brief on the part of contestant would eliminate from consid¬ 
eration all questions of registrafon per se, and payment of poll taxes, since 
it would necessarily give to the contestant the election by a large majority. 

THE POSITION OF COUNSEL FOR CONTESTEE IN THEIR SUPPLEMENTARY BRIEF REVIEWER. 


The foregoing memorandum was written in anticipation of the absence of the 
attorney for the contestant from the State before the supplementary brief of 
contestee was received, it not being desired to delay final submission of the 
matter until the return of counsel. The supplementary brief of counsel for the 
contestee has just been received before the departure of the attorney for the 
contestant, and the following comments thereon are submitted in connection 
with what is said above on the subject discussed. 

Counsel for contestee state what they conceive to be the true rule applicable 
to collateral attack on registrations, as follows: 

“ Where a court or any tribunal has jurisdiction and power to do a certain 
act and the validity of that act and its judgment is assailed on the ground that 
the court or tribunal acted improperly and illegally, if it is necessary to go 
outside of the record and make inquiry into the facts in order to determine such 
impropriety or illegality, then such judgment can not be collaterally attacked.” 

This genera] principle may be true when applied to a proper case where the 
court is one of general jurisdiction and has jurisdiction of the parties and 
the subject matter. In such cases the improper or illegal action of the tribunal, 
the jurisdiction having attached, can only be reviewed by proper directory 
proceedings. But that is not the case now under consideration. Here there is 
an officer created by a .constitutional provision, charged with certain duties of 
a quasi-judicial character. That officer is required by the constitution and 
laws of the State to preserve a record of all registrations before him, either 
in the form of a written application made by the applicant or where the ap¬ 
plicant is physically unable then in the form of questions and answers pro¬ 
vided under clause 3 of section 20 of the constitution. (See Constitution of 
Virginia, sec. 20, election laws, sec. 93.) The registrar fails to make or pre¬ 
serve any record in direct violation of the mandatory provisions of the law. 
There is, therefore, no record before him, although the law requires it, to which 
we can look to ascertain if he has complied with the law where no application 
has been taken. 


tw 


Counsel also fail in laying down these general principles to distinguish be- 
/een the cases of courts of general jurisdiction and those of special jurisdic¬ 
tion. It is admitted, of course, that there is a presumption in favor of the 
jurisdiction of courts of general jurisdiction, but no such presumption exists 
as to courts of special jurisdiction. As to such institutions or tribunals of 
special or statutory jurisdiction, the facts must affirmatively appear in the 
record. (Galpin v. Page, 18 Wall., 350, 351; Thatcher v. Powell, 6 Wheat., 119.) 

But in any event two things are essential to a valid judgment of any 
court, namely, jurisdiction of the person and jurisdiction of the subject matter, 
and if it should appear that even courts of record are without jurisdiction of 
the person or of the subject matter, then the judgment is void ab initio, and 
may be disregarded or attacked collaterally in any proceeding. Without such 
jurisdiction the judgment is a mere nullity. (Noble v. Union River, etc., Co., 
147 U. S„ 165; Lancaster v. Wilson, 27 Gratt., 624; Gray v. Stuart, 33 Graft., 
351; Stanton, etc., Co. v. Hayden, 92 Va., 201, 207.) 

In this latter case the court quotes with approval the following language 

from the opinion of Judge Lewis (78 Va., p: 616) : 

“Jurisdiction of the cause and parties is essential to the conclusiveness of a 
judgment or decree. To acquire jurisdiction of the defendant it is necessary 
that in some appropriate way he be notified of the pendency of the suit If 
upon the inspection of the record it appears that no such notice has been 
given, the judgment or decree is void.” 



58 


PAUL YS. HARRISON. 


Bearing these principles in mind, we may note briefly the cases cited by 
counsel. 

In the case of Saunders v. Terry (116 Va., 495), an effort was made 28 years 
after the judgment was made to attack it collaterally on the ground that the 
personal representative of the decedent was not before the court. The court 
was one of general jurisdiction, and had jurisdiction of the subject matter. The 
supreme court held that after such a long delay it would be presumed that no 
personal estate of the decedent was sold under the decree, and therefore the 
personal representative was not a necessary party. 

The cases of qualification of administrators and the appointment of personal 
representatives by probate courts cited by counsel are not analagous. Probate 
courts are courts of general jurisdiction having jurisdiction of the subject of 
probate, and their judgments will be presumed to be valid unless it affirma¬ 
tively appear from the record that they were without jurisdiction of the 
person or the subject matter. 

As to persons for or against whom judgments are rendered who die pendente 
lite and the judgment is rendered after death, our courts have frequently held 
that such judgment is not subject to collateral attack where-it is entered in a 
court of competent jurisdiction. We can see no analogy to the question under 
consideration in these cases. 

A registrar is an officer of special limited statutory jurisdiction. He has 
absolutely no power to act until the person makes application to register, and 
since the essential condition is that the application must be in writing to 
demonstrate the educational qualification, or in event of physical disability 
this must be covered by questions and answers written out and preserved, the 
jurisdiction can only atach upon the filing of the written application as 
required by the constitution. As is stated in 15 C. J., 797: 

“A court can not of its own motion assume jurisdiction in a particular 
matter. It is necessary that some person should in some legal way invoke its 
action.” (See authorities cited.) 

So with the registrar the constitution prescribes the matter in which his juris¬ 
diction can be involved, and his right of action in registering an applicant is 
contingent upon that jurisdiction being invoked in the legal manner pre¬ 
scribed by the constitution. It is suggested by counsel that he has to determine 
whether the person is physically disabled or not. This is true; but in such case 
the constitution requires that he shall make inquiries of the applicant under 
oath as to his qualifications and preserve the questions and answers as a record 
to show the physical disability and the fact that the applicant possessed the 
educational and other qualifications required by the Constitution. Under the 
authorities cited above, unless the record itself discloses this, then this special 
officer or tribunal has no jurisdiction whatever and the registrations are void 
ab initio. 

The case of Fisher v. Basset (9 Leigh, 119), cited by counsel, is a familiar 
case where the court has jurisdiction of the subject matter, and the supreme 
court expressly based its judgment on that fact. Certainly it will not be con¬ 
tended that any court could have jurisdiction of a person never summoned to 
appear before it or who never invoked its jurisdiction. Exactly the contrary 
has been held by numerous decisions of our supreme court, and the Supreme 
Court of the United States, some of which are cited supra. See Stanton, etc., 
Co. v. Hayden (92 Va., 201) and authorities cited. All of the other cases cited 
by counsel are subject to the same comment. They were judgments of courts 
of general jurisdiction, having jurisdiction over the subject matter and the par¬ 
ties, and mere errors or irregularities in the judgment could not be attacked 
collaterally, but only by directory proceedings. 

On the other hand, the authorities are conclusive, both of the Supreme Court 
of the United States and of Virginia, on the point that where there is no juris¬ 
diction of either the subject matter or the parties, then the judgment is void ad- 
initio and may be collaterally attacked, it matters not what may be the court 
that rendered it. 

But how can it be necessary to discuss at length a proposition of this kind 
as to registrations made without any written application or with assistance 
given by the registrar, since the courts of Virginia have ruled directly on this 
point under this particular part of the constitution? As we pointed out in our 
briefs and in the preceding memorandum, Judge McLemore in his Election 
Case (17 Va. Law Reg., 353) had this question directly before him and held 
that the written application was necessary “in order to give jurisdiction to the 
registrar to act.” This decision was followed and reaffirmed by Judge Barks- 


PAUL VS. HARRISON. 


59 


in Stok ^ s v - IIatche tt and Judge West in Summers v. Lamb cited, supra, 
ese cncuit courts are the courts of last resort in election cases in Virginia, 
and therefore their decisions have the force and effect of a decision of the su¬ 
preme court of the State in construing the law of the State until the supreme 
couit has acted thereon, if it should he given jurisdiction to do so. So far as 
the immediate question before the committee is concerned, therefore, it is set¬ 
tled by the decisions of three of the courts of the State of competent jurisdic¬ 
tion construing these very provisions of the constitution holding that registra¬ 
tion without written applications were void ab initio and throwing out the votes 
ot persons so registered. It would seem that this would conclude the discussion 
so tar this point is concerned under the Virginia constitution. 

As to those registrations in which written applications were filed, however but 
were defective in some detail, the law is exactly the contrary, since the’uni¬ 
versal rule is that the jurisdiction having attached by the making and filing of 
the written application, thus demonstrating the essential qualification of educa¬ 
tional qualification, the registrations can not be attacked except by directory 
pio( codings, although there may be defects and irregularities in the application 
01 in the legistration. In addition to the authorities cited in the foregong 
memorandum on this subject, we refer to the following decisions of the Supreme 
Court of the United States illustrating this principle: Lynch v. Bernal (9 Wall., 
31 o) ; Maxwell v. Stewart (22 Wall., 77) ; Humphries v. District of Columbia 
(174 U. S., 190) ; White v. Crow (110 U S., 183) ; Colt v. Colt (111 U. S., 566) ; 
Mollen v. Moline Iron Works (331 U. S., 352, 367). 

Me submit, therefore (1) that registrations made without any written appli¬ 
cation are void ab initio, and the votes of such persons must be thrown out. 

(2) That registrations made with the assistance of the registrar in violation 
of the express terms of the constitution are based upon fraud of the applicant 
and the registrar and are void ab initio and must be thrown out. 


(3) That registrations made upon written applications which may be defec¬ 
tive in some detail are only voidable, and while such persons might be stricken 
from the poll books upon proceedings to purge the same, they can not be col¬ 
laterally assailed and must be counted in an election contest, since these appli¬ 
cations establish the educational qualification of ability to read and write and 
give to the registrar the jurisdiction to act upon the application, and mere 
defects in procedure or in the papers will not void this action under the authori¬ 
ties cited. 

Counsel insist in their supplemental memorandum that the only proceeding 
available to contestant was to correct the illegal or fraudulent registrations by 
proceedings to purge the poll books under sections 98, 103, and 107 of the reg¬ 
istration laws. It is submitted that since the registrations made without writ¬ 
ten application are void ab initio, it is unnecessary to take steps to purge the 
registration books of the same, as the voter is not registered at all and can 
not vote. This was expressly decided by Judge McLemore in the Suffolk elec¬ 
tion case. 

But in any event, the sections referred to do not provide any adequate remedy, 
since under their provisions the proceedings for purging the poll books of im¬ 
properly registered persons can only be instituted by the electoral board or upon 
notice posted within five days after registration by the registrar, and at the 
precincts complained of no such proceedings have been instituted by the elec¬ 
toral board and no notices were posted. This will appear from an analysis of 
these statutes. 

Section 98 of the election laws provides for registering voters. It requires 
registrars annually “ on the third Tuesday in May ” to register all qualified 
voters within liis election district not previously registered, and also requires 
that— 

“ Thirty days previous to the November elections each registrar in this State 
shall sit one day for the purpose of amending and correcting the list, at which 
time any qualified voter applying, and not previously registered'', may be added.” 

This section further provides that the registrar shall— 

“ At any time previous to the regular days of registration, register any voter 
entitled to vote at the next succeeding election who may apply to him to be reg¬ 
istered. ” 

The section then requires the registrar “ within five days after each sitting ” 
to have posted at three or more public places in the election district “ lists of 
all the names of all persons so admitted to registration, and at the same time 
also certify to the clerk of the circuit court of the county, or the corporation 



60 


PAUL VS. HARRISON. 


court of the city, a true copy of such list, and to have like list posted on the 
day of the election at the place of voting in his election district.” 

It further provides that the clerk of the court shall enter the names as certi¬ 
fied in the record so kept for that purpose. 

It may thus be seen that a person may register on the third Tuesday of May 
in each year, or on the day 30 days before the election held in November, at 
the regular places of registration, or by going to the registrar prior to the regis¬ 
tration day he may be registered at any time prior to such date. But the regis¬ 
trar must post a list of such persons within five days after the registration day 
and certify a list of all persons registered to the clerk of the court to be kept in 
his office. 

We turn now to section 107 with regard to purging the registration books. 
It was argued that any three qualified voters could take steps to purge the 
books of any persons illegally or improperly registered at any time, but the 
statute does not so provide. This section provides that— 

“ The electoral board of every county or city may direct the registration books 
of any precinct to be purged whenever they deem it proper, and they shall direct 
such purging of the registration book of every precinct once every six years.” 

“ When such books are directed to be purged ” it is the duty of the registrar 
within 10 days previous to the regular days of registration to post notice of 
names of all persons who, “ in the judgment of said registrar or those who may 
be alleged by any three qualified' voters of said election district to be improp¬ 
erly on the registration books for that district.” The registrar then hears evi¬ 
dence and strikes oft the names of any persons not entitled to be on the books. 

It will be noted that this proceeding must be instituted by the electoral 
board, and until it is so instituted by the electoral board nothing can be done. 
Only if the electoral board has instituted the proceeding for purging the 
books and notice has been given can three voters come forward and allege 
that any names are improperly upon the registration books. The three voters 
can not institute the proceeding, and they can do nothing until the electoral 
board does institute it. It does not appear that any such proceeding has 
ever been instituted by any electoral board in this district, and so far as 
we know nothing of the kind has been done in the past 20 years. 

A second method of attacking illegal registration provided by this statute 
is that whenever a person is claimed to have been improperly placed upon 
the registration books, and no registration day intervenes between the time 
when the name of such person is posted as required by law and the said 
election,” then three qualified voters of the election district may appeal to 
the circuit court from the action of the registrar in placing such names on 
the registration books, with the right of either party to appeal as provided 
by the statute. It will be noted that this proceeding can only take place 
as to names posted by the registrar, as required by section 98, where no 
registration day intervenes between the date of posting and the election, so 
that here again the authority to institute the proceeding and the jurisdiction 
of the court would depend upon the names proposed to be attacked having been 
posted by the registrar, as required by section 98, and appearing on this 
posted list as having been registered at the preceding registration day. 

In the case at bar the registration day was 30 days before the 2d day of 
November, 1920, which would have been the 2d day of October, 1920. If the 
registrar posted the list of names registered on or before the 2d day of October, 
1920, then any names on that list might have been assailed by appealing to 
the circuit court, with the right of appeal from that court to the Supreme Court 
for both parties, which would have probably taken many months for decision. 
If, however, the registrar failed to post any notice of the names registered, 
and there is no evidence that he did so post the names, then there would have 
been no notice of such registrations, and no proceeding could have been insti¬ 
tuted under this statute for striking the names registered from the registra¬ 
tion book. As a matter of fact the record shows (see pp. 340, 368, 388, 494, and 
531) that in the counties of Albemarle, Clarke, and Frederick, and the city 
of Winchester, the registrars failed to certify the names of the parties regis¬ 
tered to the clerk, and the clerk had never kept any such record as required 
by section 98, from which it may be strongly inferred that the registrars 
have never complied with section 98 as to posting or certifying the names 
in these counties. In certain precincts it affirmatively appears that they were 
not posted and in no case does it appear that they were. If the contestee pro¬ 
posed to rely upon this section it was certainly incumbent upon him to prove 


PAUL VS. HARRISON. 


61 


that the names were posted and the basis thus laid for the proceedings required 
by the second half of section 107. As a matter of actual fact, contestant had 
no knowledge of these illegal registrations either in 1920 or prior thereto. 

It will he seen, therefore, that this section is very adroitly drawn. It takes 
it out of the power of anyone to institute proceedings for purging the books 
except election officers themselves. Under the first part of the section it must 
be instituted by the electoral hoard, and the registrar then acts as judge of his 
own acts. Under the second part of the section the proceeding must he predi¬ 
cated upon the notices posted by the registrar giving the names of those whom 
he has registered, and if they fail to discharge their duties the qualified voters 
are ynable to institute the proceeding. It further appears that before such pro¬ 
ceeding could have been heard the election would have been over. No one can 
read this section without reaching the conclusion that it was designed to accom¬ 
plish this result. 

But in any event it would have been impossible for the contestant to have 
known of these registrations and to have investigated each one to find out if 
it was legal, and to institute these proceedings within 25 days of the posting of 
the notices and the election. There were 157 precincts and over 7,000 registra¬ 
tions of women in this district. To say that the contestant would he bound by 
the election returns unless he investigated all of these registrations and insti¬ 
tuted proceedings to strike out those improperly registered, and had them struck 
off before election even if the election officers had posted the notices and certified 
the same to the clerk, would have been to require of him an utter impossibility, 
and the law never requires impossibilities. The utter failure of these registrars 
to certify these lists to the clerk, and of the clerk to keep any record of such 
lists from which the contestant could have gotten the names of those registered 
made it impossible to institute such proceedings, even if they had been neces¬ 
sary ; but as we have pointed out, since the registrations attacked in this case 
were clearly void ah initio, such action was unnecessary in any event, since the 
registrations in the eyes of the law did not exist, and those who cast the votes 
were not voters at all. This question is fully disposed of in Judge McLemore’s 
opinion in the Suffolk election case, and in the other opinions following his de¬ 
cision. There is clearly no method by which contestant could have purged the 
books since the election of 1920, for under the first half of section 107 such pro¬ 
ceedings could only be instituted by the electoral boards. 

It is submitted, therefore, that the contention that the remedy was to insti¬ 
tute proceedings for purging the poll books is not supported by the statute, 
since the institution of such proceedings is controlled by the election officers 
themselves, or predicated upon their acts which they did not perform. The con¬ 
struction of the law contended for by contestee is not only opposed to the Vir¬ 
ginia decisions, but would require of the contestant an impossibility, and prac¬ 
tically deny him any relief. 

We can not see that the case of Spilter v. Guy (107 Va., 811) has any bearing 
upon the question before the committee. This was a mandamus proceeding to 
require the registrars to strike off numerous voters from the registration books, 
who it was claimed had been improperly registered. The court held that man¬ 
damus would not lie since the registration involved questions of judicial dis¬ 
cretion which could not be controlled by mandamus, and there was adequate 
remedy under the provisions of the statutes for purging the books. There is no 
provision in the constitution or laws that the taxes must he paid six months in 
advance of registration, but only six months in advance of voting {it election. If 
the taxes had not been paid six months in advance of voting at election, 
although the person was registered he could not vote, and if they wished to have 
the names stricken off as being improperly registered on this account, the 
proper proceeding was that under the statute. 

In the cases under consideration, however, there has been no application to 
register, and therefore no jurisdiction of the registrar has ever attached. The 
registration is void instead of voidable, as has been held by the courts. This 
is not a mandamus proceeding, but an election contest in which the House of 
Representatives is the only forum before which any relief can be obtained. 

Of course, it is not denied that the registrar must exercise judgment in regis¬ 
tering voters, but it is denied that he has any jurisdiction to exercise that 
judgment until the written application has been made upon which his juris¬ 
diction is predicated. 

In fact, one of the queer things about the argument of counsel for contestee 
is that they admitted in their brief and oral argument that where a vote was 
cast by a person who had not paid three years’ poll taxes, as required by the 


62 


PAUL YS. HARRISON. 


constitution, his vote was void and must be thrown out, and yet. they contend 
that a vote can be counted where a person was registered contrary to the man¬ 
datory requirement of the constitution by a registrar who had no jurisdiction 
and was thus not registered at all within the eyes of the law. In effect, they 
insist that a person not registered can vote in the face of the constitutional laws 
of Virginia, and that once his vote is cast and counted the House of Repre¬ 
sentatives can not inquire into the legality thereof. The proposition answers 
itself. 

STATEMENT OF HON. THOMAS W. HARRISON, CONTESTEE. 

Mr. Harrison. Mr. Chairman, I will not attempt to follow Col. Anderson in 
his criticisms of the constitution of Virginia. For many years the people have 
prospered under it and although it was at one time proclaimed by 47 of the 
delegates of the constitutional convention, it has since been ratified again and 
again by popular vote, and never more emphatically than it was last fall when 
Col. Anderson and his theories and his objections to the constitution went down 
in an unprecedented defeat in the political annals of the State. 

I was surprised that any man would state to this committee or to anyone 
else that there was any difficulty whatever in the old Commonwealth of Vir¬ 
ginia in enforcing its criminal laws. We have the old common-law system of 
a grand jury. Twice a year it must meet, and before that grand jury anyone 
with any complaint has a full right to go. No power under God in that Com¬ 
monwealth could shield a criminal from prosecution, because the enforcement 
of the law is in the hands of the body of the people. The judge with his power 
on the bench might be the subject of an indictment at the instance of the 
humblest citizen of the Commonwealth. 

The Chairman. How would that be done, except through the district attorney 
or county attorney? 

Mr. Harrison. Anybody can go before the grand jury. We do not permit the 
officers of the Commonwealth to protect criminals. 

The Chairman. What would be the process? 

Mr. Harrison. All he has to do is to go right before the grand jury, get the 
foreman of the grand jury to summon him. Not only that, but he could go before 
any justice of the peace and swear out a warrant for the prosecution or of any 
party. They do not allow the Commonwealth attorney in Virginia to go before 
the grand jury. 

The Chairman. Your procedure is very different from ours. 

Mr. Harrison. Yes. 

Mr. Hudspeth. In our State the district attorney, corresponding to the 
Commonwealth attorney in your State, can not sit in the grand-jury room when 
an indictment is being voted upon. 

Mr. Harrison. He can not go before the grand jury in our State. He can 
have what witnesses he chooses before it, but he can not be heard. 

The Chairman. He can not go before it and examine witnesses? 

Mr. Harrison. He can not. 

Mr. Rodenberg. It is quite different in Illinois. 

Mr. Hudspeth. In our State the district judge can not go before the grand 
jury at all. 

Mr. Harrison. The Commonwealth attorney is not permitted in the grand- 
jury room, and it is done for the purpose of giving the fullest freedom, un¬ 
trammelled by any official power, in the investigation of any charge against 
any person. 

I do not see the use of taking up my time with this discussion. Outside of all 
that, any man can go before a justice of the peace and swear out a warrant, 
these matters being all misdemeanors, and have anybody convicted of a crime 
charged, if he has sufficient evidence to warrant a conviction. I state that 
more to show the whole glittering generalities that have been indulged in be¬ 
fore this committee. 

Before I pass to what I was about to say, there is another matter I wish to 
refer to. Col. Anderson, as Mr. Fletcher quoted in the record yesterday, took 
occasion to proclaim in the most laudatory terms the features of this constitu¬ 
tion. I do not know what has changed his enthusiasm into bitterness, but it 
certainly is not the love of the colored man. It was an unwise hour for the 
Republican Party in the State of Virginia when it submitted to his leadership, 
and the foundation on which it rested last fall, as submitted to the approval 
of the people of the State of Virginia, was that he represented the lily whites, 
of Virginia. 


PAUL VS. HARRISON. 


63 


There is nothing so pathetic in history, in my judgment, as the reward which 
the fidelity of the poor Negro in Virginia received at the hands of the Republi¬ 
can Party when, after years of faithful service, it seemed that that Party 
could make a greater appeal to the people of Virginia by kicking him out of 
the Republican Party, and it was done. One of the crowning characteristics 
of the Negro is his fidelity, where he feels an interest or his sympathy is aroused. 
During the Civil War, when the Confederate soldiers were out in the field, the 
household, the women and children, were entrusted to the Negro, and never were 
they betrayed. It has become a part of the religion of the Negro in the South 
to vote the Republican ticket, and he was rewarded by being kicked out of the 
party when the time seemed to be propitious. 

I want to take up another question right here, and that is the great parade 
made about having Negro judges of elect on in the city of Charlottesville. I 
do not know when that custom originated. Nobody has been able to tell 
me when the custom first originated of appointing a Negro as a judge of election 
in the city of Charlottesville. The oldest inhabitants tell me that accord¬ 
ing to their recollection it was not in their day. It was one of the souvenirs 
of reconstruction. It has been continued ever since. 

The father of one of the present judges was a member of the constitutional 
convention and represented the great County of Albemarle. He was a judge 
of election, and after his death his son was appointed, and so on down through 
all this time have these Negro judges of election been appointed in the city 
of Charlottesville. And no one objected, no one asked for anything else, 
and as a matter of course these men were simply continued as judges. They 
are men of large property. One is worth $250,000, another one is worth $100,- 
000 or more. They are respected by everybody in the city of Charlottesville, 
white or black. The appointments were not for this elect on hut of years 
standing. 

Mr. Hudspeth. What are their political affiliations? 

Mr. Harrison. They are Republicans, of course. As I have said, part of 
the characteristics of the Negro is their fidelity to the Republican Party. In 
our section they vote it solidly. 

Now, that question was raised in regard to the appointment of these Negroes 
at Charlottesville. I did not know it. I had no idea they had Negro judges 
of election in Charlottesville, but the question was raised and brought before 
the court in the last election. 

Mr. Hudspeth. You state that it is a universal characteristic of the Negro 
to vote the Republican ticket. That does not apply in my State. 

Mr. Harrison. It does in mine. 

Mr. Hudspeth. In my own home city they come in our primaries and help us 
nonunate our candidates, and then go over to the Republicans in the general 
election and help defeat us. 

Mr. Harrison. We do not allow them to do that. That is one of the fea¬ 
tures of the Democratic primary, that they can not vote. 

Mr. Rodenberg. They were induced by Democrats to do that. 

Mr. Harrison. I will read, as part of my remarks and as an answer to 
the criticism that was indulged in of these Negroes, what Judge Dabney said, 
as an offic'al decision in the matter. 

The Chairman. How does it come before the court? 

Mr. Harrison. Col. Anderson or somebody representing him filed a petition 
for a mandamus to compel the electoral board or to prohibit that board from 
appointing these Negroes. I do not know exactly how, but it got before the 
court in a proceeding instituted by the Republicans. It got before Judge Dab¬ 
ney very recently in the fall of 1921. 

Mr. Luhring. When? 

Mr. Paul. The petition was filed and an appeal made to the electoral board 
on the ground that these men purporting to represent the Republican Party 
as elect on judges in the city of Charlottesville were not Republicans. The 
hoard would not remove them, and we applied for a writ of mandamus, applied 
to the judge of the circuit court for a writ of mandamus to compel it to remove 
them. That is how the matter got before the court. 

H\rrison. Here is what Judge Dabne,\ said in respect to that mattei 

when the matter came before him officially : 

“ First. For many years the electoral board has duly appointed one colored 
election judge for each precinct of this city. 

“Second. Said appointments have always been heretofore made by the con¬ 
sent or request of the Republican Party, as proper representatives of that 


64 


PAUL VS. HARRISON. 


party—the law requiring that the judges he appointed so that one Republican 
be appointed for each precinct and two Democrats. 

“ Third. For a great many years, the great majority of the Republicans in 
this city and section of the State have been colored people, and a Republican 
officeholder represented his party in the constitutional convention of 1868. He 
was the Republican judge of election for a great many years before his death 
and his son succeeded him. 

“ Fourth. These colored Republican election officials have always been intelli¬ 
gent, efficient, and honest and have been satisfied that their party lias been 
fairly treated at all elections, so they have been continued without protest 
until after the last election. 

“ Fifth. Since then the electoral hoard has been severely criticized by white 
Republicans for appointing these colored men, and recently formal request has 
been made that they be replaced with white Republicans. 

“ Sixth. The board has granted this request in two precincts, but in the two 
where the colored Republicans greatly outnumber the white ones, they have 
retained two colored judges, and have appointed a white Republican clerk and 
no colored clerks for each precinct. 

“Against the appointment of these two colored Republicans this petition 
complains, but no complaint is made as to the selection of the six white Re¬ 
publican officials. 

“ Upon the foregoing state of facts, this thought presents itself to the court. 
Is this really a question of judicial relief from a wrong, or is it political 
demagoguery to influence ignorant voters on the race question? When the 
Negro vote was large, did the white Republicans ever try to repudiate it? 
If there were now enough Negro voters to carry the State Republican, would 
this request be made to oust these men? If so. no question of politics is in¬ 
volved. But if the motif of this proceeding is politics and not justice, a court 
of law could not take jurisdiction. This court will assume as a presumption 
of law that petitioner is not trying to use this proceeding for political pur¬ 
poses. 

“ It is claimed that these colored men are not Republicans. Colored men 
were refused participation in a political convention of white men claiming to 
represent the only Republican Party in this State. These colored men voted 
in the last election for Harding. They and others of their race certainly 
helped to make the Republican Party have next to the largest vote. This made 
them Republicans then. They claim to he Republicans now. So the issue is 
whether a man’s own volition or that of others makes him a Republican. 
If the lily white convention can keep the colored men from voting for Republi¬ 
can candidiates, then indeed is he out of that party. But of all the law 
quoted, none has yet been cited to this effect. 

“ The issue is now reduced to the simple question of whether the Negro shall 
per se be discriminated against. Whatever others may do, the courts of this 
State never have and never will do this. 

“ So' this court can not hold that these two colored election judges are not 
members of the party casting next to the largest vote at the last general elec 
tion. On the contrary, the court is of the opinion that the casting of a vote 
for the candidates of a political party makes the voter a member of that party 
until he changes his own convictions. And the action of the electoral board 
in appointing Inge and Coles violates no law or principle of law or justice 
in the opinion of the court. 

“As to the complaint that the board has violated the law in failing to meet 
in May, of those this is not mandatory as to nullify all their subsequent acts. 
And, strangely enough, petitioner does not complain of the subsequent appoint¬ 
ment of the six white Republican officials. 

“ No gentlemen of higher integrity can be found in this city than the mem¬ 
bers of our electoral board, and the court sustains their every action com¬ 
plained of, and adjudges and orders that the request for a writ of mandamus 
be and is denied and the defendants recover their costs, and the case be stricken 
from the docket.” 

More than that, these very judges were unanimously appointed by a board 
that consisted of two Democrats and one Republican. 

Now. it is said that this man Andrews was not a Republican, because he 
voted in the Democratic primary. It certainly shows that he went into that 
Democratic primary to vote against me, and then he followed his vindictive¬ 
ness when, with his lips yet wet with the pledge to sustain the choice of the 


PAUL VS. HARRISON. 


65 


waTm7na Hi^ n es ^ 0llt and T votes for the Republican candidate. He certainly 
judges were Elected! 116 ' WRS by the unanimous vote of ^ body that these 

Wdulo 1 am on this question, there is a matter I want to call attention to. 
in n sfSw 11 m , ad ? h J somebody up here in Greene County, it was said that 
rfro'wf ’ tf 1 made I drew the color line. I do not know what they meant by 

rawmg the color line. That is a matter of opinion. What I did was simply 

1 011 Senator I aul, which I had the right to do, to state how he was going 

, between a colored Republican who was running for the Senate and a 
white Democrat, who was Carter Glass. 

iliey had in that same connection some statement about some scurrilous lit- 
eiature sent into this State from Ohio. So far as I know or ever heard of, 
that scurrilous literature did not reach that district, in my judgment, until 
much later in the canvass, and was repudiated by everv decent man, whether 
Democrat or Republican. 

Now. I want to come to one more thing before I come to this question of 
registration. I am not going to talk so much law as I am going to talk facts 
in this case. I want to clear this matter up about this election machinery. 

hy, of course, I do not deny the fact that the party in power appoints, if 
it can, a majority of the members in charge of the election machinery. It is 
done by both Republicans and Democrats. I am addressing six Republicans 
now. When you organized the House you did not put the Democrats in control 
of your election committees. When the Democrats had charge they did not put 
Republicans in control, and they had the right to put the Democrats in the 
majority. 

But as far as practicable the law of Virginia removed the election machinery 
from political influence. The judges of the circuit court are judges that hold 
their offices virtually for life. They hold for long terms and are disassociated 
in most cases from the local political influences, because they cover a large ter¬ 
ritory. Some times city judges, of course, are confined to the cities. One case 
is Judge Dabney of Charlottesville. 

These judges appoint a board called the electoral board. They are composed 
of three prominent citizens of the county or city. These judges, as I say, as 
far as practicable, take no part in politics, and as far as possible they act in¬ 
dependently of politics. As I said, Judge Dabney, although Mr. Andrews told 
him he would vote the Republican ticket, said it was all right. In two other 
counties they appointed Republicans on the electoral board, and I challenge 
anybody to lay their hands upon a single member of any electoral board that 
would not compare favorably in standing and high character with any member 
of this committee. 

I would like to read one sentence in the brief of the contestant, and I ask 
the committee when they come to read this testimony to bear that sentence in 
mind, and see if they can lay their finger on any fact or circumstance in this 
case that would have justified such a statement. This is the sentence I refer to: 

“ The only evidence in the case as to the honesty of the election is the state¬ 
ments by Democratic election officials that their conduct was honest, while at 
the same time every item of their conduct and every fact surrounding their 
actions shows that it was exactly the contrary. The only thing lacking in a 
perfect chain of evidence to establish the dishonesty of this election is the 
fact that Democratic election officials did not admit upon the stand that they 
had acted fraudulently.” 

Now I call upon contestant to indicate one single fact which will justify 
any such statement as that. Men of high character and unblemished integrity 
are impugned by a statement that has not a single fact to back it up. Not 
only that, but they had the fullest opportunity to prove what they wished 
about this election. Why did they not summon the Republican workers* if there 
was any rascality in it? Instead of that they put the Democratic officials upon 
the witness stand and badgered them with cross-examination, when sitting 
by their sides were the Republican workers and the Republican officials and the 
Republican men who had charge of the election, and contestant did not dare 
to put one single one of them on the witness stand to prove a single allegation 
that would justify this statement. On the contrary, we placed Republicans on 
the witness stand ourselves in many instances, and we showed beyond contro¬ 
versy. beyond dispute, that so far as the conduct of this election and the honesty 
of this election was concerned it was above reproach. 

93942—22-5 



66 


PAUL YS. HARRISON. 


They say, “ Oli. well, there were violations of the law.” They called it 
violation of the law. At most it can only be classed as a wrong interpretation 
of a law about the correct interpretation of which learned lawyers dispute. 
The election officials in this election only followed the interpretation which had 
for years and years been the interpretation followed by the election officials of 
the State and accepted by all parties, all candidates, and in all elections, 
general, primary, and special. 

I want this statement driven home to the committee. If any intelligent man 
on this committee will lay a linger upon a fraudulent act in the whole conduct 
of this election, to justify such a statement being put in this record, my resig¬ 
nation will he in the hands of the Speaker. 

How do they attempt to prove fraud here? Just look at this stuff, page 518, 
volume 1 of the record. Here is the way they prove fraud : 

“ Q. This is the home of Mr. Richard E. Byrd, is it not?—A. Yes.” 

Mr. Richard E. Byrd is a distinguished lawyer of the State of Virginia. 

“ Q. He is former Commonwealth attorney of this county?—A. Yes, sir. 

“ Q. He is former speaker of the house of delegates, former special attorney 
general of Virginia, former district attorney for the western district of Virginia, 
and at present special attorney for the United States, and also a member of 
the big four in Virginia politics?—A. I do not know about the latter.” 

Mr. Fletcher. What is the pertinency of that? 

“ Q, Is it not a fact that Mr. Byrd is a member of the big four in Virginia 
politics, which is made up of Senators Martin, Swanson, Flood, and Byrd?—A. 
I do not know.” 

Why, they rely on all sorts of testimony of that kind. I had to send to the 
registrar in Shenandoah County to bring in the books for me when this contest 
was filed, so I might examine the evidence of the registrations, and the question 
is asked, “ Were you not called here into a conference? ” and all that sort of 
rot, with all sorts of insinuations, trying to create the impression, not by proof 
of any sort or by any fact, but that because certain people dwelt in certain 
communities and had certain prominence in State affairs and certain things 
were done in the preparation of my case that therefore the Democratic 
officials were frauds. 

If you are going to decide this contest on the ground that the State of Vir¬ 
ginia is Democratic, that its governor is Democratic, that its legislature is 
Democratic, of course, you have the power to seat the contestant; but if you 
are going to decide this case on the facts in this record I challenge any man 
to lay a finger upon one single act that reflects upon the integrity of a single 
official that conducted this election. 

Why did they not put Republicans on the stand? They had them. We 
challenged them to do it. They were sitting by their side. We said, “ Put 
them on the witness stand, if you doubt the integrity of this election.” No; 
they wanted to be able to come before this committee and make statements of 
the character above quoted and that it was a Democratic statement and not 
the truth. We challenged them again and again while their workers were 
sitting by their side, to put their workers on the witness stand. 

Now, one other thing. I am not going to do so much talking about the 
law in this case as I am the facts. My time is passing rapidly, and I will 
have to hurry on. 

Mr. Paul. Mr. Chairman, I should like to say that we are not disposed to 
limit Judge Harrison if he cares to continue beyond the time allotted; we 
will not feel we are being wronged in that case. Being one of the parties 
involved. I think he should have all the time necessary. 

The Chairman. I wish you would come to the question of the provision 
of the constitution in regard to registration. 

Mr. Harrison. Yes; I will. 

Before *1 come to that, I want to call your attention to the attitude on one 
thing. This'method of registration has been going on for 14 years. It has 
been acquiesced in by every official that ever ran for office; it has been in 
effect in every bond issue, in the election last fall, in the election when Senator 
Paul was elected to the Senate—the time when he ran against me four years 
ago—and not one single whisper as to the fact that it was not strictly ac¬ 
cording to law. He and his workers went out in this campaign and dragged 
people to the registration booths and registered them, just as they had been 
registered for years. 

Hi dsplth. I want to ask you right there, what is your contention as 
to the number of illegal votes that were cast in that election? 


PAUL VS. HARRISON. 


67 


-Mr. Harrison. I have them tabulated. I am going to give you some facts 
on the subject. 

Mr. Hudspeth. I mean men who were not under the law authorized to vote 
in that election. 

Mr. Harrison. I will come to that. 

Mr. Hudspeth. I do not see it summarized in the evidence, and I want to 
get your view on that. I want to ask Mr. Paul about it, also. 

Mr. Harrison. Here is the attitude that the contestant now takes before 
this committee. He says, “ I will pursue the law as you have interpreted it, 
and if I win, all right; and if I lose, I will have a contested election case.” 
It is a case of heads I win, tails you lose. 

As I said, he was elected to the Senate, in his own county, where the same 
system of registration prevails as in Port Republic, as in Mount Crawford, 
as in Ottobine. He admits the registration was all wrong there, in the large 
Republican precincts of the county. 

I want to say, Mr. Chairman, right here, that we do not depend upon his 
construction of that law. I take his law. I say his law is wrong, and he 
is out of court; and if it is the law, he goes out on the facts. There could 
not be any interpretation of the law more suited to my contention than to 
adopt the contention he makes here, as I will show you. 

Now, the constitution of Virginia provides that a person must apply in writ¬ 
ing for registration, in which certain specific facts must be set out. nine in 
number, and upon that application the registrar has the right to register him. 
The constitution does not require merely a written application; it is a written 
application of a certain character and type. You can not change the consti¬ 
tution of Virginia. When the constitution of Virginia says that this applica¬ 
tion must contain certain things, you can not substitute some other kind of 
application for it that does not contain those certain things. 

The Chairman. What about the contention in respect to Albemarle County, 
where no applications were made at all? 

Mr. Harrison. There is no such allegation as that. 

The Chairman. I think so. 

Mr. Harrison. In some few precincts. What difference does it make? It 


the fourth 
Everybody 
him. The 
segregated 


makes no difference. 

The Chairman. You contend that the provisions of the State Constitution of 
Virginia should absolutely be ignored, so far as the application is concerned, 
do you? 

Mr. Harrison. No; I do not contend that at all, and it is not true. I say 
that there were certain registrars who were there only for a brief time. In 
ward of Charlottesville one had only been a registrar two years, 
who had registered prior to that time had not been registered by 
same is true in all these other precincts. We have taken out and 
the different precincts in which no applications were taken. There 
were many cases, one or two or three at a precinct, where such things happened. 

Now, the constitution, as I was going to say, states that you must make your 
application in writing, containing certain specific matter, and my judgment is 
that you can not substitute for that written application anything else. The 
constitution further says in Article XXV: . 

“ The general assembly shall provide for the annual registration of voters, 
under section 20, for an appeal by any person denied registration, for the cor¬ 
rection of illegal or fraudulent registration thereunder, and also for the proper 
transfer of all votes registered under this constitution.” 

Now, in pursuance of that same constitutional provision, the same 
tion that required a written application of a certain character also 
registration could be attacked. And the object was this, 
laudable: I go to a registrar and I say. “Mr. Registrar, I want to 
He says. “All right. Mr. Harrison, I will register you ” ; and he reg- 
My name is on the books. Nobody challenges it. I go and vote. 
Yobodv challenges it. Then, without giving me a hearing, in a eontested-elec- 
-ion case I am'disfranchised if contestant’s law is sound. The object of this 
tMtiite was that after a man’s name was placed upon the regitration books, 
Vega 11 v or fraudulently, there hould be a method by which his name can be 
?rased, and the party whose name was thus put upon the registration book 

1 'Vow. h afTa^natter of fact, Mr. Chairman, and I want to discuss the facts 
•ather than the law. 


how that 
plain and 
register.” 
isters me. 


const i til- 
provided 
perfectly 







68 


PAUL VS. HARRISON. 


The Chairman. I would like to have you discuss Judge McLemore’s decision, 
to the effect that until the application is filed the registrar has no jurisdiction 
whatever. 

Mr. Harrison. Judge McLemore says he has no jurisdiction unless the ap¬ 
plication is in the form and of the character required by the constitution, 
specifically. He can not come with a defective application and get any more 
jurisdiction than he can where there is no application. 

Mr. Luhring. In the case upon which the McLemore decision was based, was 
that a direct attack upon the registration or was it a collateral attack? 

Mr. Harrison. It was a contested-election case of a local-option election. 

Mr. Luhring. Then it was a collateral attack? 

Mr. Harrison. Yes. Judge Christian, another Virginian judge, decided ex¬ 
actly opposite to Judge McLemore, and Judge Christian was unquestionably 
right. I do not care. It is mandatory in that sense. I contend that registrar 
should have required those written applications, and they should have been in 
accordance with the statute; but when the statute gives the party a practical 
method by which those registrations can be brought in question, and in accord¬ 
ance with the provisions of the constitution, then, in my judgment, he must 
follow it. 

The Chairman. May I propound a hypothetical case to you, Judge? 

Mr. Harrison. Yes. 

The Chairman. I would like to get this matter clear. Assume in a certain 
precinct there were 250 new voters who were not on the old roll. Take the 
women, for instance, voting for the first time. The constitution requires that 
a written application shall be made, in which certain questions are to be an¬ 
swered by the applicant, which application is to be filed with the registrar. 
Now, we will assume that the registrar in that precinct did not require a written 
application, and that he did not submit questions to these voters, and he places 
their names on the list without the provisions of the.constitution being com¬ 
plied with in any respect. Your contention is that, they having been placed on 
the list without challenge, those persons are legal voters at the election? 

Mr. Harrison. Yes. Registration is nothing but an identification of the voter, 
in most instances. When you get the man’s name on the registration books, the 
man would be absolutely powerless. What could he do? I go to the registrar 
and say I want to register. He registers me. I have no complaint that he did 
not take a written application from me. He puts my name on the registration 
books, and there are authorities again and again in the congressional cases and 
in the decisions of the courts that hold that where a man does everything that 
an election officer requires him to do he can not be held responsible because the 
election officer fails to do his duty. 

The Chairman. Your contention would be the same in regard to the payment 
of a poll tax? 

Mr. Harrison. No. I think the poll tax is absolutely illegal if not paid six 
months in advance. There is no contention about that. There is no doubt about 
that, in my judgment. The controversy the contestant raised in this case is 
whether the sole evidence of the payment of the poll tax was the fact that his 
name was not on the poll-tax list that the treasurer was required to prepare. 

Mr. Gilbert. In other words, the constitution makes the failure to pay the 
poll tax a condition for voiding a vote. 

Mr. Harrison. Yes. 

Mr. Gilbert. The constitution provides that in the registration certain con¬ 
ditions shall be performed, and if they are not performed he shall have his 
name stricken off according to the provisions of the constitution itself. 

Mr. Harrison. Exactly. In the case of a poll tax under section 18 of the 
constitution, the judge of election must ascertain if the poll tax lias been paid. 
He also ascertains if voter has registered, hut he can not inquire if the regis¬ 
trar properly discharged his duties. 

Now, I want to call your attention to the facts in this case. I have a list of 
all the precincts. I want to call attention to the fact that in these very pre¬ 
cincts where there were no actual applications taken there was a registration 
oath signed. 

Mr. Paul. Not in all of-them, Judge? 

Mr. Harrison. There were very few in which there were not. How many? 

Mr. Paul, I do not know the number. In some there were and in some there 
were not. 

Mr. Harrison. In practically all of them, and the signatures of that oath 
served as a substitute for the written application. 


PAUL YS. HARRISON. 


69 


A /J ° the various precincts in which no applications were taken. 

. V Hudspeih. Is it your contention that where a prospective voter received 
aid m liis registration, in making out his registration application, that the 
same plan and procedure should be resorted to in order to have liis name 
stricken from the rolls as where lie makes no application? Is that vonr con¬ 
tention? 

Mr. Harrison. That is my contention. According to this constitution, 
wherever a man s name is illegally or fraudulently put upon the reg.stration 
hooks by the official charged with that duty, then the procedure for him to 
take must be the procedure required and provided for by the constitution. 
One Clause of the constitution relates to how a man gets liis name on the 
registiation books, and the other clause relates to bow, when his name is 
once on it, it can be taken off. 

i\Ir. Hi dspeth. Do you and Col. Anderson agree that where the registrar 
reads the law to them and shows them the statute that is not a violation of 
the law? 

Mr. Harrison. I think a man has a perfect right to have the statute read 

Mr. Hudspeth. That is not illegal? That is not aiding him? 

Mr. Harrison. I go to the registrar and say, “ I want to register.” He says, 

You must make an appl.cation in writing." I say, “ Produce your law.” 
And he produces the law. I have got a right to look at it. What is the law 
established for. 

Mr. Hudspeth. That was Col. Anderson’s statement, if I got it correctly, 
yesterday. 

Mr. Anderson. I said he had a right to look at it, but did not have a right to 
have it explained by the registrar. Anybody has a right to read the law when¬ 
ever he wants to, night or day. 

Mr. Harrison. Here is the registration oath to which I referred as contained 
in section 95 of the code: 

“ Before the registrar shall register the name of any person as a voter he shall 
be satisfied of his qualification as hereinbefore prescribed; and every person 
applying for registration shall, before he is registered, take and subscribe the 

following oath: ‘ I, -, do solemnly swear (or affirm) that 1 am entitled to 

register under the constitution and laws of this State, and that I am not dis¬ 
qualified from exercising the right of suffrage by the constitution of Virginia.’ 
which oath, so subscribed, shall be filed with the registrar and preserved with 
the books of registration.” 

Now, why, if all these informal applications are all right, does not signing 
such a paper as that present the question of an application; and if it does, out 
goes all this complaint. 

But all I want to say, Mr. Chairman, is that the object of that statute was to 
protect the suffrage and to place certain restrictions around the suffrage. So far 
from my objecting to it. I think I was entitled to it, and I have been the man 
that has been injured by the violation of that statute. But I stand on the footing 
that I can not complain, nor can anybody else complain. I stand on the methods 
approved by the statute. When a man gets his name on the books, if it is 
fraudulently placed on that registration book by the registrar, or illegally placed 
there, the statute says his right to that being placed there can not be challenged 
except by three qualified voters and the man brought into court. Here you 
propose, without giving the man the slightest opportunity to show that lie was 
not required to make the w ritten application—without giving him the slightest 
opportunity to show it, to show facts that would justify the course of action 
taken—to come in and disfranchise him and disfranchise the whole district. The 
statute of this Commonwealth has provided, and the constitution of this State 
has expressly provided, that it will protect the man in his registration; that it 
will not permit anybody to question his registration, unless a procedure is 
adopted which gives him an opportunity to be heard. 

I started to read the precincts in which no applications were taken. It seems 
to me, if you would take the trouble to figure this question out, you would find 
these questions are largely academic. My calculation is that a strict adherence 
to the law would have increased my majority nearly 1,200. 

In the fourth ward of Charlottesville—the only ward in Charlottesville where 
they did not take written applications—the number of what they claimed were 
illegal votes was 154, or a net loss of 75 to me. In Howardsville there was a loss 
of 7. In Wingfields there were 4 illegal votes, as claimed, and the loss to me 
would be 2. In Monticello there were 32 illegal votes claimed, or a net loss of 14. 

Mr. Hudspeth. That is on a pro rata basis? 



70 


PAUL VS. HARRISON. 


Mr. Harrison. That is on a pro rata basis. We have the proof. We introduced 
proof of their party affiliations. 

Do you care to have this read? 

The Chairman. You may put it in the record as a part of your remarks. 

Mr. Harrison. Shall I read it? 

The Chairman. As you please. 

Mr. Harrison. I will put that into the record. 

Mr. Paul. We would like to have a copy of that. 

Mr. Harrison. The stenographer will give you a copy of it. 

Mr. Paul. I had no chance to look at those papers. I know that is an impos- 
s ble number, and I would like to comment on it. 

Mr. Harrison. If the law was enforced according to that my majority, in the 
precincts where no applications were taken, would be increased about 54. 

Mr. Rulwinkle. I would suggest that you read it hurriedly. 

The Chairman. Your time has very nearly expired. 

Mr. Paul. If I may have it to look at, that would be satisfactory. I just want 
to see the names. 

Mr. Hudspeth. Your contention is that if the votes were thrown out in the 
different precincts where there were no applications shown- 

Mr. Harrison (interposing). My majority would be increased 54. 

Mr. Hudspeth. On a pro rata basis. 

Mr. Harrison. On a pro rata basis. I am charging him with what was proved 
to be Republcan votes. We proved the Republican votes in the precincts we 
took. We proved the votes were Republican. There were some where defective 
applications were taken, which we claim is on the same footing as no applica¬ 
tion. My majority would hav been increased 1,056. 

I will just put this paper in the record. 

(The paper referred to is as follows:) 



Illegal 

vote. 

Loss. 

Gain. 

WHERE NO APPLICATIONS TAKEN. 




Charlottesville, fourth ward (H., 205; P., 71). 

1.54 

75 


Howardsville (H., 39; P.,3)... . 


7 


Wingfields (H., 20; P., 6). 

4 

2 


Monticello (H., 84; P., 34). 

32 

14 


Proffit (H., 18; P., 15). 

18 

10 


Earleyville (H., 69; P., 48). 

16 

3 


Lindsay (H., 51; P.,27). 

13 

4 


Covesville, no proof...... 




Scottsville (H., 160; P., 20). 

75 

59 


Berryville (H., 309; P., 60). 

164 

100 


Mount Airy (H., 20; P., 7). 

2 

1 


White Post (H., 107; P., 36). 

36 

18 


Turners Shop (H., 10; P., 10). 




Millwood (H., 129; P., 66). 

35 

11 


Newtown (H., 176; P., 79). 

/ 12 

1 24 


Middletown (H., 157; P., 80). 

1 2 66 
110 

1 

36 


Neggstown. 




Dry Run (H., 25; P., 22). 

6 



Kernstown (ft., 879; P.,56). 

52 

8 


Old Forge (H., 52; P., 18). 

18 

12 


Armel (H., 12; P., 26). 

26 


10 

Carpers Valley’(H., 56: P., 75). 

/ 11 


g 

Gainesboro (H., 30; P.,67). 

\ 2 51 

23 

/. 

9 

Brucetown (H., Ill; Pi, 65). 

56 

15 


Yeakley...... 




Gore (H., 49; P., 38). 

3 

2 


White Hall (H., 77; P., 123).. 

47 


11 

Lamps (H., 7; P., 29). 

2 


1 

Greenwood (H., 73; P.,43).;. 

12 

3 


Winchester, ward 1 (H., 353; P., 359). 

/ 1 19 

\ . 

23 

Winchester, ward 2 (H., 417; P., 337). 

\ 2 485 

/. 1 13 

/. 

1 21 

Mount Crawford (H., 130; P., 93). 

\ 2 322 

129 

21 


Shenandoah (H., 166; P., 207). 



44 

Court House. ’ . 

254 


197 

Town Hall. 

152 


56 

New Market. 


Flint Hill (H., 75; P., 26). 

20 

10 

• 


1 Negro. 2 White. 















































































PAUL VS. HARRISON. 


71 


Illegal 

vote. 


Loss. 


Gain. 


where no applications needed— continued. 


Cabin Hill (H., 28; P., 100). 
St. Luke (H., 39; P., 98)_ 

Fishers Hill (H., 35; P., 82) 

Springfield. 

Joliet..... 

Shirley (H., 92; P., 42). 


Riley ville (H., 48; P.,68) 

Newport. 

Honey ville. 


O. 

D. 

R. 


R. 

O. 

D. 

R. 

O. 

D. 

R. 

D. 

R. 

D. 

R. 



7 

5 
10 
18 
16 

6 
37 

8 
11 

8 

15 




35 

44 

30 

*7 

21 


33 


456 


8 

7 

474 


DEFECTIVE APPLICATIONS. 

Borden (H., 67; P., 91). 

Mount Olive (H., 36; P., 62). 

Dry Run (H., 32; P., 70). 

Pine Hill (H., 18; P.,36). 

Quicksburg (H., 30; P., 126). 

Edinburg (H., 122; P., 367).,. 

Hudson Cross Roads (H., 21; P., 93). 

Hamburg (H.. 22; P., 59). 

Lautz Mill (H., 37; P., 148). 

Columbia Furnace (H., 26; P., 176)... 

Leaksville (H., 23; P., 132). 

Luray (H., 267; P., 314). 

Marksville (H., 163; P.,240). 

Prinz Mill (H., 19; P., 37). 

Port Republic (H., 87; P., 132). 

Moyerhoeffer Store (H., 54; P., 94). 

Elkton (H., 51; P.,247). 

McGaheysville (H., 106; P.,206). 

Singers Glen (H., 86; P., 134). 

Swift Run (H., 7; P., 101). 

Melrose (H., 48; P.,73). 

Keezleton (H., 91; P., 82). 


O. 

D. 

R. 

O. 

D. 

R. 

O. 

D. 

R. 

R. 

O. 

D. 

R. 

O. 

D. 

R. 

O. 

D. 

R. 

D. 

R. 

O. 

D. 

R. 

O. 

D. 

R. 

O. 

D. 

R. 

O. 

D. 

R. 

O. 

D. 

R. 

R. 

O. 

D. 

R. 

O. 

D. 

R. 

O. 

D. 

R. 

O. 

D. 

R. 

O. 

D. 

R. 

O. 

D. 

R. 

O. 

D. 

R. 

O. 

D. 

R. 


2 

26 

49 

1 

1 

18 

3 

6 

23 
7 
7 

7 

60 

50 
30 
118 

9 

0 

32 

3 
21 

1 

13 

56 

4 

8 
58 

2 

6 

53 

47 

79 

105 

9 

24 
47 

5 
23 

8 

23 

11 

2 

32 

47 

9 

51 
37 
21 
58 
10 

2 

12 

2 

0 

12 

6 
5 

12 

21 

10 

13 




23 

17 

18 
7 

56 

155 

38 
18 
43 

107 

66 

18 

24 
5 

19 

31 

39 
48 

20 

7 

9 

2 







































































72 


PAUL VS. HARRISON. 


4 

Illegal 

vote. 

Loss. 

Gain. 

defective applications— continued. 

Edom (H., 89; P., 89). 

(0. 10 
|D. 5 

✓ 

9 

Ottobine (H., 121; P., 302). 

[r. 14 

10. 24 

■Id. is 


222 

McMullen (H., 25; P., 108). 

Ir. 27 
(O. 16 

|d. 0 


46 

Monroe (H., 60; P.. 151). 

Ir. 38 

(0. 9 

|D. 9 

1 . 

6 


Ir. io 

1 

* 


. 


1, 053 





REPLY BY CONTESTANT TO TABULATION OF * CONTESTEE RELATIVE TO ILLEGAL 

REGISTRATION. 


On February 7, 1922, at the close of his argument before the committee, the 
contestee offered what purported to he a statement or tabulation, showing what 
he claimed to be the effect of eliminating certain illegal votes at precincts 
named therein. Leave was given contestant to file any comment or reply he 
chose thereto. A copy of the statement tiled by contestee was furnished con¬ 
testant some days after the argument on February 7. He regrets his inability 
to reply thereto more promptly but has been prevented by duties which could 
not be disregarded. 

The statement tiled by contestee appears to be divided into two parts—(1) 
those precincts at which he alleges there were no valid appplications to register 
and (2) those precincts at which he claims certain applications were defective 
in the matter contained in them. 

Contestant finds it extremely difficult to discuss in a concise or illuminating 
manner the statement filed by contestee, for an examination of it shows that it 
is prepared apparently with no reference whatever to the facts shown in the 
record. 

Contestant in his reply brief submits certain tabulated statements showing 
the effect of eliminating certain illegal votes. These tables are several in num¬ 
ber, dealing with various aspects of the case, and are a complete refutation of 
the claims of contestee. And contestant wishes to emphasize now that the 
tabulations appearing in his reply brief are correct and accurate. They were 
prepared after weeks of painstaking and careful work during which the record 
was diligently gone through and every name involved carefully checked. Con¬ 
testant stands absolutely behind these tabulations in the knowledge that they 
are correct. And in the discussion to follow he requests that the committee 
will refer to the tables in the reply brief as freely as if they were embodied in 
this note; for they furnish a complete and accurate contradiction to contestee’s 
claims. 

Contestant had assumed before examining it, that contestee’s tabulated state¬ 
ment was an attempt to reply to the contentions made by contestant in his 
reply brief. But on examination he finds that the statement filed by contestee 
bears no apparent relation to contestant’s claims or to the facts proven in the 
record. 

It is with reluctance that contestant is forced to state that the statement 
filed by contestee is amazing in its absolute disregard of the proven facts, that 
it is .grossly inaccurate and misleading from beginning to end, that the figures 
set out in it are in many cases impossible upon their face, and that it is utterly 
without value in arriving at the conclusion which the committee seeks. 

Before proceeding to any detailed discussion of contestee’s figures contestant 
desires to call attention to certain general facts disclosed by his examination 
of contestee’s statement and which impelled contestant to make the statement 
that contestee’s tabulation is meaningless as any attempt to arrive at a true 
result, is made up in reckless disregard of the' proven facts, and is gravely 
misleading and unfair. 

1. In tabulating precincts at which there was no application to register, 
contestee sets down only a partial list of these precincts. As in Albemarle 


















PAUL VS. HARRISON. 


73 


Comity lie lists 9 precincts aggregating a net loss to himself of 174 votes, and 
dehberateiy omits to mention 12 other precincts where he suffers a loss of about 
190 additional votes. 

He confines himself to listing only those precincts where no application was 
made and does not put in all of these—and fails to make any mention of 
precincts where the registrant was assisted in preparing the application by the 
legistiai or b\ third persons and where, of course, the application was equally 
void. 

3. Tn the Democratic counties of Albemarle and Clarke, he confines himself 
strictly to names which were set up in the notice of contest and the answer 
thereto, and even in many cases to the names attacked in the notice- 
omitting the names set up in the answer, where it is to his advantage to do 
so, although they are, of course, equally competent to be considered; 
while in precincts carried by the Republicans, as in Shenandoah County, he 
bases his figures on all names injected into the evidence, whether named in 
the pleadings or not, and in many cases he considers persons registered for 
years past. 

Contestant iii his tabulations in the reply brief has confined his figures to 
those voters specifically named in the notice and answer, believing he had no 
right to claim illegal votes that had not been set up by name by either party. 
Other names were developed in the evidence as being illegal voters and con¬ 
testant would greatly benefit by a consideration of these. But he believes 
himself hound by the pleadings, and claims no advantage from these additional 
votes. And contestant most earnestly protests at the gross unfairness of 
contestee in seeking to hold to the names set up in the pleadings, where it is 
to his advantage to do so, and to refuse to he bound by the pleadings where it 
will aid him not to he so bound. Yet this is just what contestee has done 
throughout his statement. 

4. At many precincts, contestee. in his statement, does not even give the 
number of votes claimed by him to be illegal, hut he arbitrarily sets down 
certain figures which he calls his “ gain,” without any indication as to how 
they are arrived at. In all such eases these “gains” are entirely incorrect. 

5. Contestee undertakes to question the vote at certain precincts which were 
not attacked in the notice or 1 answer, and as to which all evidence was, we 
contend, inadmissible; and at one precinct at least which he lists as among 
those where no applications were taken the evidence of the registrar was that 
he had written applications from every registrant, and he produced them. 

6. The most conclusive proof of the reckless carelessness with which 
contestee’s statement was prepared is in the fact that under the heading where 
he tabulates his supposed “gains,” he repeatedly claims greater gains than 
the entire number of votes claimed by him as illegal. As for example, at 
Columbia Furnace, he claims 70 illegal voters and then sets down his “ gain ” 
as 107. At Leaksville he claims 01 illegal votes in all, and claims a “gain ” of 
66. At Newport, he claims as illegal voters 19 persons of whom, he says, 11 
were Republicans and 8 Democrats; and he then claims a “gain” of 8 votes. 
Ottobine, he claims a total illegal vote of 66 persons, and then claims a “ gain ” 
of 222 votes. These are simply a few examples of his inaccuracy; the same 
mathematical impossibilities are performed at various precincts throughout 
his tabulation. Such a tabulation is, of course, meaningless. 

7. At certain precincts, where it is to his advantage to do so, contestee un¬ 
dertakes to classify the alleged illegal voters as to their party affiliation. Con¬ 
testant has already (reply brief, pp. 43-45) commented on the worthlessness of 
the evidence on this subject and called attention to the fact that contestee also 
during the taking of the evidence, held the view that there was no proper 
proof of politics. (Rec., pp. 115, 190, 202. 245.) He only wishes now to call 
attention to two other examples of the character of the evidence on which con¬ 
testee claims to have established how persons voted: That on page 1012 of the 
record, where a witness testified that persons were Republicans because, he 
says, they lived in a section “ where most of the Republicans live.” And to 
the remarkable testimony on pages 1664-1672 of the record, where a willing 
witness testified glibly that numerous persons were* Republicans. He admitted 
that he did not know many of these persons, d'd not know whether they were 
old or young, where they lived, who they were, or what they did ; that he would 
not know them if he saw them on the street. He says he had made a “mental 
list ” of them and had listed them as Republicans. 

Contestant has consistently taken the position that farcical evidence of this 
sort means nothing and has, therefore, not considered the alleged party affilia- 


74 


PAUL VS. HARRISON. 


tions of the voters questioned; but has treated them all, even in heavily Demo¬ 
cratic communities, as if their politics were unknown, and lias arrived at his 
results through the method of proportionate reduction of the illegal votes. 

Contestee has varied his method to meet his advantage, using the proportion¬ 
ate reduction at some precincts and claiming proof of party affiliation at others. 
Even where he adopts this latter course his own tigures are frequently inaccu¬ 
rate. As, for example, he says that at Port Republic there were only eight 
Democrats among the questioned voters. His own witness (Rec., pp. 1250-1252) 
classes 19 of the persons inquired about as Democrats. At Melrose contestee’s 
list puts down only five as Democrats; his witness (Rec., 1403-1404) classes 13 
as Democrats. 

Contestant has made no effort to check up this testimony as to party affilia¬ 
tion iit the various precincts with the list of conestee, for he believes it of no 
value. He simply cites the two instances above (which he accidentally noticed 
while searching for other data) to show that gross inaccuracy pervades every 
phase of contestee’s statement. 

The committee will note that in this note contestant does not attempt to dis¬ 
cuss every figure set out by contestee in his table. That would be impossible. 
He does seek to impress on rhe committee that contestee’s tabulated statement 
is grossly inaccurate in every phase, that it is garbled, misleading, and unfair; 
that it is worthless as any attempted refutation of the claims made by con¬ 
testant in his reply brief and set out in the tables of his figures included in 
the reply brief. 

And contestant again repeats and emphasizes that the tabulated statements 
and claims in his reply brief are accurate and correct; that they make every 
reasonable concession to contestee, and the results shown are the maximum to 
which contestee is entitled. (Reply brief, pp. 41, 45, 51, 71. 171.) 

Having set out generally the inaccurate methods by which contestee has pre¬ 
pared his tabulated statement, contestant now takes it up somewhat more in 
detail. 

The precincts are referred to in the order in which they appear in contestee's 
tabulation, so that the committee may he convenienced in following the respec¬ 
tive contentions of contestee and contestant. 

CHARLOTTESVILLE AND ALBEMARLE. 

Charlottesville (fourth ward) : The total number of persons voting at this 
precinct whose registration was void and who were specifically named in 
notice and answer was 165, and not 154, as contestee alleges. (See pp. 32, 48.) 
And contestee’s net loss by eliminating these votes is 81, not 75 as he alleges. 
Including votes illegal for nonpayment of poll tax, net loss to contestee is 82. 
(See reply brief, tabulation 2, p. 45.) 

Howardsville: Contestee’s net loss through illegal registration at this precinct 
is 6; and including nonpayment poll tax, net loss is 7. 

Wingfields: Contestee’s net loss from illegal registration is only 1. (Reply 
brief, tabulation 3, p. 51.) But, together with votes illegal for nonpayment 
poll tax, net loss is 4. (Reply brief, tabulation 2, p. 45.) 

Monticello: Contestee's net loss from illegal registration is 14, as he states; 
but including nonpayment poll tax his net loss is 15. (Reply brief, p. 45.) 

Proffits: Net loss to contestee from illegal registration is io, as he states. 

Earleysville: Contestee’s net loss from illegal registration is 2; including loss 
for nonpayment poll tax is 4. (Reply brief, p. 45.) 

Lindsay: Contestee states his loss from illegal registration at this precinct 
as 4; whereas contestant does not even question the registration at this precinct, 
and only claims a loss to cpntestee of 1 vote for nonpayment of poll tax. (Reply 
brief, p. 45.) 

Covesville; (This is on contestee's tabulation as Carrsville.) Contestee says 
“no proof” as to this precinct. Record shows positive proof (p. 217) of 14 
voters illegally registered and 4 others whose poll taxes were unpaid. Net 
loss to contestee at this precinct is 6. 

Scottsville: Illegal votes for void registration were 76, making net loss to 
contestee of 60. Including 13 persons who voted without paying poll taxes, 
his net loss is 69. (Reply brief, p. 45.) 

It will he noted that the contestee omits any reference whatever to the follow¬ 
ing 12 precincts, at all of which the registration was illegal, and the results at 
which clearly appear in contestant’s reply brief, page 51, tabulation 3, and 
page 45, tabulation 2, sheets 1 and 2, and at all of which contestee has losses of 


PAUL YS. HARRISON. 


75 


liV.'vf lu ” llbei ‘ s * )f V ^ te . s: Charlottesville (third ward), Batesville, Carters 
t> K , se ’ Uree Union, Hillsboro, Ivy, Keswick. North Garden, Owensville, 

Porters, Stony Point. 

Contestant requests the committee to examine the tables referred to in his 
reply brief for the exact and accurate figures on these precincts, for both illegal 
legistiation, and lor nonpayment of poll taxes, where it will be seen that at 
these precincts there is a net loss to contestee of at least 190 votes. This is giv¬ 
ing the contestee the benefit of every doubt, for it does not include any precincts 
except those at which the registration was plainly illegal under the views of 
the attorney general of Virginia, cited by contestee in his brief. 

( ontestee s net loss in Albemarle County by eliminating illegal registration is 
at least 239, and in Charlottesville at least 98, or a net loss in the county and 
city of at least 387. Including votes illegal for nonpayment of poll tax', con¬ 
testee s net loss would be not less than 392. All of these voters were specifi¬ 
cally named in the notice or answer. If we include those additional illegal 
registrants not named in the pleadings, but developed by evidence, contestee’s 
net loss would be at least 120 more, for there were at least 252 of the additional 
illegal registrants discovered. (Reply brief, p. 41.) Contestant, however, 
claims only those set up by name in the notice or answer. 


CLARKE COUNTY. 

Berryville: The total number of persons voting at this precinct whose regis¬ 
tration was illegal, and all of whom are specifically named in the notice and 
answer (Rec., pp. 18 and 48), was 190. not 164, as contestee states; and con¬ 
testee’s net loss by eliminating these is 128 and not 100, as his tabulation shows. 
(See reply brief, pp. 9. 51.) Including votes illegal for nonpayment of poll tax, 
the net loss to contestee is 133. (Reply brief, p. 45, sheet 2.) 

Mount Airy: The number of illegal registrants here is very small, resulting in 
net loss to contestee of 2 votes. (Reply brief, p. 51.) 

White Post: Contestee’s figures on this precinct as to registration are correct 
and correspond with figures in contestant’s tabulation 3 (reply brief, p. 51), 
showing net loss to contestee from illegal registration of 18 votes. Including 
votes illegal for nonpayment of poll tax, contestee’s net loss is 21. (Reply brief, 
p. 45, sheet 2.) 

Turner’s shop: Vote at this precinct being a tie, the net result is not changed. 

Millwood: The illegal registrants who voted at this precinct and who are 
specifically named in the notice and answer (Rec*., pp. 19 and 49) were 38 in 
number (5 names are in both notice and answer). 

Contestee’s net loss is 12. (Reply brief, p. 51.) (In this tabulation on page 
51, the figures 28 in column showing number of illegal voters is typographical 
error; it should be 38, and results are calculated on latter figure.) Including 
votes illegal for nonpayment poll tax, contestee’s net loss is 13. (Reply brief, 
p. 45, sheet 2.) 

Contestee calmly omits all reference to the precinct of Russell’s where there 
were proven 28 illegal registrants, all named in the notice (Rec., p. 19), re¬ 
sulting in net loss to contestee of 16 votes (reply brief, p. 51). Including 
voters whose poll taxes were not paid, contestee’s net loss is 19. (Reply 
brief, p. 45, sheet 2.) 

Contestee’s net loss in Clarke County from illegal registration is not 131, 
as he would have the committee believe, but is 176; and including poll taxes 
it is 188. All of these are specifically named in the notice or answer. If we 
include names not set up but developed in the evidence, as contestee seeks to 
do at precincts carried by contestant, then contestant’s net loss is at least 
85 more. (There were 158 of these additional illegal votes discovered in this 
county. See reply brief, p. 41.) 

FREDERICK COUNTY. 

Newtown (Stephens City) : The inaccuracy of contestee’s tabulation is 
strikingly illustrated by this precinct. He states there were 68 illegal votes 
and that his net loss is 24, whereas the notice of contest names only 42 
illegal voters (Rec*., p. 20) and the answer names none. Contestant only 
claims that the net loss here to contestee is 16 (reply brief, p. 51). If con¬ 
testee seeks to question votes not named in the notice or answer but developed 
in the evidence, he should do so at all precincts. In his tabulation of pre- 


76 


PAUL VS. HARRISON. 


cincts in Albemarle County he confines himself to names specifically men¬ 
tioned in the notice and answer. He here undertakes to go outside the names 
mentioned in the pleadings; he is not accurate even in this attempt, for if 
this is allowable, then the evidence shows 185 void registrations at this pre¬ 
cinct, (reply brief, p. 41, and record, pp. 393-395), with a net loss to con- 
testee of 71. 

Middletown: Here again contestee’s figures are grossly inaccurate. If only 
those votes are to be thrown out which are named in the notice or answer, 
then there are only 58 illegal voters at this precinct (Rec., pp. 21, 49) and 
contestee’s net loss is 18 (reply brief, p. 45, sheet 4). If names not set up in 
notice or answer can be considered, then the evidence shows 178 void registra¬ 
tions at this precinct (reply brief, p. 41; Rec., p. 400-401), and contestee’s 
net loss would be 58. Contestant in his tabulations confines himself solely to 
names mentioned in the notice or answer, believing that he is justly held 
down to the case made in the pleadings. If he may be allowed to question 
votes not named in the notice or answer but developed in the evidence as 
illegal, contestant’s advantage would be greatly increased, for the evidence 
developed in Albemarle County and Charlottesville about 300 void registra¬ 
tions in addition to those set up in the notice and answer; in Clarke County 
about 200 such additional illegal registrants; and in Frederick County over 
600 additional illegal registrants. (See reply brief, tabulation 1, p. 41, and 
references there given). 

Dry Run; There is no charge made against this precinct in either the notice 
of contest or the answer, and no persons were named as being illegal voters here. 
Registration at this precinct should not be. considered in any way, and how con¬ 
tested arrives at the conclusion that there were 6 illegal votes here is not under¬ 
standable. Tbe evidence developed 10 void registrations here, but contestant 
did not question these, for they had not been set up in the notice or answer. 

Ivernstown: The vote at this precinct was: Harrison, 79; Paul, 56. Only 
7 illegal registrants were named in the notice and answer, and contestee’s net 
loss is 1 only. The total number of void registrants developed by the evidence, 
but not claimed by contestant, because not set up, was 85. If these are to be 
considered, contestee’s loss is 15. 

Old Forge: There is only 2 illegal registrants named at this precinct in the 
notice and answer. The evidence developed 34 illegal registrations. If these 
latter are to be considered the net loss to contestee is 17. If only names spe¬ 
cifically set up are considered, contestee’s net loss is 2, which is all that con¬ 
testant claims. (See reply brief, p. 51 and p. 45, sheet 4.) How contestee 
figures 18 illegal votes and a net loss of 12 it is impossible to see.) 

Armel: There are only 6 illegal registrations here set out in the notice or 
answer (Rec., pp. 21 and 49), and contestee’s net gain is 2. (Reply brief, p. 
51 and p. 45, sheet 4.) The evidence developed 21 additional void registrations, 
but contestee can not claim these unless he admits the admissibility of similar 
ones at other precincts. His tabulation for Albemarle and Clarke Counties con¬ 
fines itself to names set up in notice and answer. 

Carpers Valley: There are 21 illegal registrations here set up in notice and 
answer (Rec., pp. 21 and 49). and contestee’s net gain is 3. (Reply brief, p. 
51.) Here again contestee seeks to claim additional names developed in the 
evidence, though he refuses to consider such additional names in the Democratic 
counties of Albemarle and Clarke. 

Gainsboro: The notice and answer name 15 illegal registrations at this pre¬ 
cinct. (Rec., pp. 21, 49), and contestee’s net gain is 5 (reply brief, pp. 51 and 
45, sheet 4). Again contestee tries to claim additional names developed in the 
evidence at this precinct carried by the Republicans, while denying consideration 
of any such names shown in Democratic counties. 

Brucetown: There are 24 illegal registrants named in the pleadings (Rec., pp. 
49-50, and contestee’s net loss is 8 (reply brief, p. 51 and p. 45). 

Yearkleys: There is one illegal registrant named in the answer (none in the 
notice) and contestee’s gain is 1 (reply brief, p. 51 and p. 45, sheet 4). 

Gore: There are 4 illegal registrants named in this precinct in the notice 
and answer (Rec., pp. 21, 49), and there is neither loss nor gain to contestee in 
apportioning these (reply brief, pp. 51 and 45). 

White Hall: There are 13 illegal registrants named in the pleadings (Rec., 
p. 49), and contestee’s net gain is 3 (reply brief, p. 51 and p. 45, sheet 4). 
Contestee again seeks to set up additional names. 


PAUL YS. HARRISON. 


77 


Lamps: There is no charge in the notice or answer in any way as to this 
precinct, and it, of course, should not be considered. 

Greenwood: There are only 3 illegal registrations named in the answer (none 
in the notice), and contestee’s net loss is 1. (Reply brief, p. 51 and p. 45, sheet 
4.) There were 15 additional void registrations discovered in the evidence, but 
contestant does not claim these. If they were to be considered contestee’s loss 
would be 5. 

Winchester (ward 1) : At this precinct the notice and answer set up 148 
illegal registrants. (Rec., pp. 28 and 50.) On page 28 the names attached by 
contestant are not separated by wards, due to error in preparation of notice or 
in printing; but of the 148 names set up, 86 are in the first ward and 62 in the 
second ward. Deducting these 148 illegal voters proportionately makes a net 
gain to contestee of 1 vote. (Reply brief, p. 51 and p. 45, sheet 4.) 

Nothing could better illustrate the utter unreliability of contestee’s purported 
tabulation than his figures on this precinct. The contestant carried this precinct 
by 6 votes. Contestee says there were 504 illegal votes (485 whites, 19 negroes) 
here, though there is no explanation as to how to arrive at this number. By 
apportioning these 504 illegal votes he figures that he gains 23 votes and trans¬ 
forms a Paul majority of 6 into a Harrison majority of 17. We submit that this 
is a mathematical miracle that defies explanation. The only possible means by 
which he could even approach such a result is to arbitrarily assume that all the 
negroes voted for contestant. This he apparently does, without making the 
slightest attempt to show how any of them voted and in the face of the fact 
that the evidence shows that in this district many colored people are Democrats, 
and in Frederick County even enter the Democratic primaries. / Even had all 
the colored voters voted as contestee arbitrarily decides they did, the resultant 
figures set down by him are impossible. 

Winchester (ward 2) : Contestee’s figures on this precinct are as remarkable 
as those on ward 1, above. 

The notice and' answer name 92 illegal registrants. (Rec., pp. 28, 50.) Ap¬ 
portioning these shows net loss to contestee of 10. 

In Winchester, as elsewhere, contestant has confined himself to the names set 
up in the pleadings. It developed, however, that practically the entire registra¬ 
tion rolls of both wards were absolutely void. (Rec., pp. 475-479, 483, 500-508.) 
If the committee considers this, or considers contestee’s admission that there 
were 504 illegal voters in ward 1 and 335 in ward 2 (though how he arrives at 
these figures, no one knows), then these precincts should be thrown out en¬ 
tirely. And this would give contestee a net loss of 74 votes, instead of the 
9 claimed by contestant. 

Based on voters specifically named in notice or answer to be eliminated in 
Frederick County, the accurate corrected returns show a net loss to contestee in 
the county of 32 votes and in Winchester a net loss to contestee of 9 votes. 
(Reply brief, p. 51 and p. 45, sheet 4.) Total loss to contestee in county and 
city of 41 votes. If we were to consider illegal registrations not set up in plead¬ 
ings but developed in evidence, contestee’s loss would be much greater, for an 
extremely large number of additional illegal registrations were discovered 
in this county and city. (See reply brief, p. 41.) 

Mount Crawford (Rockingham County) : At this precinct the number of 
illegal voters named in the pleadings is 82. (Notice 54, p. 23 of record; answer 
54 of record.) Apportioning these shows net loss to contestee of 14 
(Reply brief p. 51 and p. 45, sheet 9.) Evidence developed 71 addi- 
void registrations which contestant did not question because not men- 
in notice or answer. No justification for contestee’s figures of 120 illegal 


28. p. 
votes, 
tional 
tioned 


votes. 

Shenandoah (Page County) 
give number of votes claimed 
votes here. 

shows net gain to contestee of 14 votes (reply brief, p. 51 and p. 45, sheet 5) 
instead of 44 claimed by him. The amazing carelessness of contestee s figures 
is plainly shown here; contestant had a returned majority of 41 votes, 
testee claims that taking an unnamed number of illegal votes . 
them proportionately enables him to gain more than this majority and 
the precinct by 3 votes. This is, of course, a 
matter how large or how small the number of illegal votes. 


Contestee’s purported tabulation does not even 
as illegal but simply states he should gain 44 
There is nothing whatever to base this on. The notice and answer 
s of 120 ilelgal registrants. (Rec., pp. 22, 53.) Apportioning these 
- J - ■ ' ’ ^ ^ 5) 

;ures 
Holl¬ 
and deducting 
dty and carry 
mathematical impossibility, no 


78 


PAUL VS. HARRISON. 


SHENANDOAH COUNTY. 

Courthouse: Contestee does not even give the returned vote here on which he 
bases his figures. It was. however, Harrison 278; Paul 327. There were 226 
illegal registrations mentioned in the pleadings. (Notice 120, answer 106, Rec., 
pp. 25, 66.) Deducting these shows net gain to contestee of 20 votes. (Reply 
brief, p. 51 and p. 45, sheet 8.) The evidence discloses 28 additional illegal 
registrations not mentioned in notice or answer, hut even including these con- 
testee's net gain would be only 23. Contestee’s tabulation attempts again 
the mathematical miracle of overcoming contestant’s returned majority of 49 
and establishing a majority of 78 for contestee by the process of proportionate 
reduction—or arbitrary statement. 

Town hall: The vote here was, Harrison 142, Paul 185—a Paul majority of 
43. There were 103 illegal voters named in the notice and answer. (Rec., pp. 
26, 68.) Deductions of these results in net gain to contestee of 13 (reply brief, 
p. 51 and p. 45, sheet 8) and not 56, as contestee claims. Again contestee per¬ 
forms the impossible of overcoming contestant’s entire majority by proportion¬ 
ate reduction. 

Newmarket: Vote here was Harrison 159, Paul 158; so close as to be im¬ 
material. (Reply brief, p. 51.) 

Flint Hall (Rappahannock County) : Number of illegal voters named in notice 
and answer is 24 (Rec., pp. 22, 54), not 20, as claimed by contestee, and eon- 
testee’s net loss is 12 (reply brief, p. 51). 

Cabin Hill: Without giving any number of illegal voters, contestee claims a 
gain of 35 votes. This is impossible. The notice and answer set up only 29 
illegal votes (28 voted) and contestee’s net gain is 16. (Reply brief, p. 51.) 
Even including 17 additional illegal registrations developed in the evidence, 
contestee’s net gain at the greatest would be 26. He is entitled to 16. 

St. Luke: Without fixing any number of illegal votes to be deducted, con¬ 
testee simply claims a gain of 44 votes. This is impossible. The answer set up 
only 31 illegal votes; the notice set up none. (Rec., p. 68.) This would make 
a net gain to contestee of 13, votes. (Reply brief, p. 51 and p. 45, sheet 8.1 
Even including the 34 additional void registrations shown by the evidence (see 
reply brief, p. 41), contestee’s net gain could not be anywhere near what he 
claims. 

Fishers Hill: In his tabulation as to this precinct (and at others following), 
contestee inserts certain figures, the meaning of which he does not explain, under 
the heading “ Illegal vote.” Apparently he means that the illegal voters com¬ 
prised 11 of unknown political affiliation, 4 Democrats and 31 Republicans— 
a total of 46. How he arrives at the number it is impossible to see, as the 
answer (Rec., p. 62) names only 26 illegal voters (25 of these voted). 

We have already commented upon the worthlessness of the evidence as to 
political affiliation (reply brief, pp. 43-45) of these illegal voters. It was par¬ 
ticularly farcical at this precinct (Rec., pp. 803-806) and meaningless. Rut 
were we to accept it as of any value, the evidence shows that the registrar, a 
most willing helper of contestee’s case, testified (Rec., pp. 803-806) that of the 
25 illegal voters named in the answer, 22 were Republican and 3 were Demo¬ 
crats, making a net gain to contestee of 19 votes. It will be seen by reference 
to contestant’s reply brief (p. 45, sheet 8) that contestant took note there of 
this attempt to prove political affiliation and set out in a footnote the facts 
regarding it. This evidence is so utterly worthless that the only proper way to 
reach any accurate result is by proportionate reduction of these 25 illegal votes. 
This would make a net gain to contestee of nine votes here. (Reply brief, p. 51 
and p. 45, sheet 8.) 

From the above it will be seen that by eliminating those illegal registrants 
named in the notice and answer the net gain to contestee in the precincts named 
aggregate 71; including Pine Hill, a precinct not mentioned by him, but where 
he gains 3 votes (reply brief, p. 45, sheet 8), his aggregate gain in Shenandoah 
County is 74 votes. If we include the additional illegal registrants developed 
in the evidence, his net gain is only 113. 

PAGE COUNTY. 

Springfield. Jollett, Shirley, Rileyville, Newport, Honeyville. 

Nothing could better illustrate what contestant is forced to believe is a 
lack of good faith and fairness on contestee’s part than the latter's purported 
figures on the six precincts named above, all in Page County. There was no 
charge of any sort made as to a single one of these precincts in the notice or 
answer and not a single vote set up as illegal. 


PAUL VS. HARRISON. 


79 


It will be seen by reference to the notice and answer (Rec, pp 22 52-54) 

clUfled ni °Tl, P vnnUU* 8 " ielUi<mcd in Page County none of the above are in- 
not in',IIJl ■ now comes, and, from some source, which he does 

“ th ’ .ffU f, 1 '” 8 7- 7'7 S shouM be eliminated to his advantage; 

and his. attei basing ins tabulation m Albemarle and Clarke Counties solely 

not S neHHc.div ,P -et n “'f ! lle f, ,lln S s and denying the right to consider any names 
nor spe<ineall.v set out m the notice or answer. 

But Ins recklessness in preparing his tabulated statement goes much further 
At the precmct of Shirley contestee states that 23 persons were registered 
without making application, and that of these 18 were Republicans, 10 Demo¬ 
crats, o of unknown political affiliation. This is exactly contrary to the evi¬ 
dence of the registrar (Rec.. pp. 955-962) who testified that all registrants 
made written application without assistance. He produced these applications 
and testified that he thought 13 of them were Republicans and 12 Democrats 
, con if contestee were not mistaken in his facts as to this precinct it will 
be noted that he claims the impossible result of gaining 21 yotes by eliminating 
Republicans, 10 Democrats, and 5 unknown. Attention is called to this last 
simply to show the complete recklessness and unreliability of contestee’s 
figures. 

At Newport precinct contestee’s figures claim 11 Republicans and 8 Demo¬ 
crats registered without application, with a net gain to him of 8 votes. Even 
if the testimony as to political affiliation were of any value at all it is still 
impossible to figure how 8 subtracted from 11 leaves 8. 

At Rileyville precinct contestee claims a net gain of 33 votes. The evi¬ 
dence shows (Rec., p. 1008-1012) that the registrar was asked as to the 
registration and political affiliation of about 40 voters and that he testified 
he thought 18 were Republicans, 10 Democrats, 12 unknown. Even con¬ 
ceding the correctness of his testimony, contestee’s gain could not be more 
than 10. The absolute farce of the testimony as to political affiliation is 
shown by this quotation (Record, bottom page 1012) : 

“ Q. What were his affiliations and associations—Democratic 
can?—A. Well, I suppose we might say Republican. 

“ Q. How do you arrive at that conclusion?—A. Well, most of 
cans live down that neck of the woods. 

“ Q. That is the only way you arrive at that conclusion ?- 
that is the only way.” 

Honeyvilie: Contestee’s figures are approximately correct as to number of 
illegal registrants developed by the evidence, but none of these were named in 
notice or answer, and testimony as to party affiliation is worthless. 

None of these registrations, now claimed illegal, were set out in the notice 
or answer, and should not be considered. But even were we to consider them, 
contestee’s net gain at these precincts could not possibly aggregate more than 
28, instead of the 76 he claims. 

It will therefore be seen that if we are confined to names set up in the 
notice and answer, as contestant admits should be the case, then contestee’s 
losses and gains from illegal registration are as follows: 


or Republi- 
the Republi- 
-A. Yes, sir; 



Loss. 

Gain. 

Albemarle County. 

239 


Charlottesville.... 

98 


Clarke County. 

177 


Frederick Countv. 

32 


Winchester.. 

9 


Rappahannock County (Flint Hill). 

12 


Page County (Shenandoah).... 

14 

Shenandoah County. 


74 

Rnr-kinpham County 1 . 


31 




567 

119 


1 Contestee mentions only one precinct in this county; there are several others. 


Contestee’s net loss in district, 448, to which is to be added 65 for nonpay 
merit of poll taxes. 

Including illegal votes for nonpayment of poll taxes, all of which were so; 
up in the notice of contest, contestee suffers a further loss in Abemarle Couniv 



























80 


PAUL YS. HARRISON. 


of 43 votes, in Charlottesville of 13 votes, and in Clarke County of 9 votes, 
an aggregate of 65 to he added to his net loss from illegal registration. 

If we were to go ahead and include illegal registrations not mentioned in 
the notice and answer, contestee’s loss in the district would he much in¬ 
creased, and his losses and gains in the counties would he as follows: 



Loss. 

Gain. 

Albemarle and Charlottesville. 

457 


Clarke. 

261 


Frederick and Winchester. 

148 


Rappahannock. 

12 


Shenandoah. 

113 

Page. 


42 

Rockingham. 


' 65 




878 

220 


1 Approximate. 


Contestee's net loss in district, 658. This is exclusive of votes illegal for 
nonpayment of poll taxes. 

Contestant believes, however, that the parties are hound to the names set 
up in the notice and answer. 

DEFECTIVE APPLICATIONS. 

Contestant will not attempt to discuss in detail the precincts listed by con- 
testee as being those at which the applications for registration were, as he 
claims, defective in the matter contained in them. 

It seems to contestant that this attempt to set out all of these precincts and 
to convey the impression that they have a bearing upon this case is but an at¬ 
tempt to confuse and mislead the committee. It is so well settled by the Vir¬ 
ginia law and by other authorities, heretofore cited in the briefs and in argu¬ 
ments, that these so-called “ defective ” registrations are not void and can not 
be attacked in this proceeding, that it need not be further argued here. Under 
the law it is as well settled that “ defective ” applications, if made without as¬ 
sistance and accepted by the registrar, are voidable only, as it is that, where 
the registration is made without application or where the applicant is assisted 
the registration is void. 

Contestant wishes to impress upon the committee that this view is not ad¬ 
vocated by him because of any fear of harm to his case, but because he knows 
this is the law; that it has always been the law of Virginia, declared by its 
courts and acquiesced in by its people. And contestant, realizing the importance 
of this case as affecting the administration of the election laws of Virginia 
in the future, wishes it decided upon a true and correct interpretation of the 
laws of this State as held by its own courts. Throughout the taking of evi¬ 
dence contestant contended and conceded that where a registrant had made 
an application without assistance, and this application was acted on by the 
registrar, the registration was not void. And contestant does not believe that 
contestee can seriously contend otherwise. 

The contestant does not concede and does not believe, however, that even were 
the committee to consider the so-called “ defective ” applications, that there 
would be any difference in the result of the election as claimed by contestant. 
The figures submitted by contestee in his purported tabulation are not borne 
out by the evidence. It is impossible to analyze them as to each precinct ex¬ 
cept by a most prolonged discussion and by lengthy references to the record, 
but contestant wishes to call attention to a few of the gross inaccuracies in 
them. He does this, not in the belief that this feature of the case is material 
to the issue but to call attention to the reckless disregard of the fact on con¬ 
testee’s part which render his tabulation utterly worthless and meaningless-- 
not only as regards the results indicated by him on defective applications, but 
also on the figures he set out for the precincts where there were no applica¬ 
tions ; in fact, on his entire effort to tabulate the result. 

Contestee in his tabulation arbitrarily asserts as to each precinct that there 
were a number of defective applications, the number of which he proceeds to 
fix. He constitutes himself the judge of what applications are defective and 
what are not, without indicating in any way how he arrives at his judgment. 




















PAUL VS. HARRISON. 


81 


Plu' figures \\ liicli he arbitrarily sets out in his tabulation in no way correspond 
with the number of persons named in the answer. As, for example, at Borden 
(Shenandoah County), the first precinct he mentions, he appears to claim 67 
defective applications, whereas the answer sets up only 86 names. (Rec., p. 
67.) The utter untrustworthiness of the evidence as to political affiliation has 
been discussed heretofore, and also in the reply brief and need not be touched 
on again. Similarly at Dry Run ‘precinct, where the tabulation claims 32 de¬ 
fective applications and the answer names only 16 persons. (Rec., p. 63.) 
Of the applications copied in the record (p. 657 et seq.). the testimony is that at 
least 14 or 15 {ire Democrats, not 6, as contestee states. Also at Quicksburg 
precinct, where contestee states there were 74 defective applications, the answer 
names only 26 voters. (Rec., p. 68.) At this precinct, as at many others, 
contestee put into the record applications made in years previous to i.920, and 
which the registrar still happened to have in his possession. (The law requires 
only that the applications shall be kept for a year, after which the registrar may 
destroy them.) The great injustice of this and contestee’s deliberate attempt 
to confuse are manifest. 

At Edinburg precinct, where contestee apparently claims 198 illegal votes, 
the answer set up only 117 names. (Rec., p. 64.) The utter lack of conviction 
in the testimony as to political affiliation is shown in the registrar’s testimony 
(Rec., p. 690-691), where he repeatedly uses such expressions as “ Republican, I 
presume,” “ Republican, I suppose,” etc. And on page 702 of the record, where 
he says that he does not know how any of these voters actually voted. But, as 
convincing proof of the haphazard manner in which contestee has set down his 
figures, attention is called to the fact that he claims a gain at this precinct of 
155 votes. This is more than the number of voters named in the answer, and 
even were we to concede his right to reject other names, his figures are equally 
erroneous. If it were true that 118 Republicans, 30 Democrats, and 50 of un¬ 
known political affiliation had voted illegally, it is a mathematical impossibility 
for contestee’s net gain to be 155. 

At Hudson’s Cross Roads, where contestee claims 41 illegal votes, there are 
only 22 voters named in the answer. At Hamburg, where he claims 24, there 
are 17 in the answer. And many applications at both precincts are perfect in 
detail. (Rec., pp. 708-712 and 769-770.) 

Again, at Lantz Mill, the answer sets up 50 names, whereas contestee claims 
70 illegal votes. As a matter of fact, most of the applications made here and 
copied in the record on pages 808 to 814, and claimed as “defective.” are per¬ 
fect in form. 

At Columbia Furnace the answer sets up 49 names. (Rec., p, 63.) Con¬ 
testee then claims 70 illegal votes, with a net gain to himself of 107. If every 
vote claimed by him was illegal (which they were not), and everyone had voted 
the Republican ticket (which they did not), it is an impossibility that he should 
have gained 37 more votes than the total claimed as illegal. His claims at this 
precinct are a commentary on the absurdity of his entire tabulation. But this 
case is not an exception for at the very next precinct listed by him—Leaks- 
ville (Page County)—he repeats this and calmly claims as his net gain a num¬ 
ber in excess of all votes claimed as illegal. And this, despite the fact that the 
answer sets up only 46 names. (Rec., p. 52.) 

At Luray contestee claims over 200 “ defective ” applications, whereas in the 
answer he sets up only 67 names (Rec., p. 52), and the applications of many 
of these are complete in every detail. And at Marksville contestee sets up in 
the answer (Rec., p. 53—54) the names of 45 persons, and then claims almost 
double this number of illegal votes. 

Printz Mill precinct was not even mentioned in the pleadings in the case, but 
contestee introduced the registrar as a witness, and finding he had registered no 
one in 1920, proceeded to dig up five applications for registration made in 1919. 
over a year before the election in question. 

At Port Republic the pleading contains names of 39 voters (Rec., p. 58), 
whereas contestee claims 54 illegal votes. It will also be seen that many of 
the applications put into the record (p. 1238 et seq.) as defective, are, in fact, 
complete. Contestant in this discussion has paid little attention to contestee’s 
attempt to separate those votes which he claims illegal, as between Democrats 
and Republicans, because of the flimsy character of the evidence on this sub¬ 
ject, but here he desires to call attention of the committee to the fact that, 
whereas contestee claims only eight of these voters at Port Republic were 


93942—22-6 



82 


PAUL YS. HARRISON. 


Democrats, the testimony of his own witness (Rec., pp. 1050-1052) classes not 
less than 19 as Democrats. Contestant cites this solely to show the unrelia¬ 
bility of contestee’s whole tabulation and the error that pervades every phase 
of it. Contestant has made no attempt to check up this political classification 
at other precincts, but feels sure that this same lack of accuracy occurs in 
the figures as to other precincts. 

At Meyerhoeffer store the answer filed by contestee sets up the names of 33 
persons (Rec., p. 54), while contestee’s tabulation seems to claim 45 illegal 
votes. 

At Elkton, where contestee claims 107 illegal votes, the answer sets up only 
66 (Rec., p. 57), and the applications of many of these are complete in every 
detail (Rec., pp. 1288-1294). Again, at McGaheysville precinct the answer sets 
up 80 names (Rec., pp. 55-56) and contestee’s tabulation claims 116 illegal 
votes for “ defective ” applications. Many of these so-called “ defective ” ap¬ 
plications which are copied in the record (pp. 1325-1328 and 1304-1312) are 
complete. 

The complete inaccuracy of contestee’s figures is shown by his tabulation as 
to the next two preincts on his list, namely, Swift Run (as contestee has it 
“Singer Run”) and Singer Glen. If the numbers under his heading “illegal 
votes ” are correct, then his gain at Swift Run would be more than the seven 
he claims and his gain at Singer Glen would be less than the 20 he claims. 

As a matter of fact, there were eight void registrations at Singer Glen, due 
to failure to take any application from that number of registrants. Con¬ 
testant’s tabulation (Reply brief 51, and p. 45, sheet 9) take account of these 
and give credit to contestee for his gain of two votes here, as will be seen by 
reference to the tables mentioned. 

The figures at Melrose and Iveezeltown are equally inaccurate. At the former 
he claims 23 defective applications, while in the answer he sets up only 12 
(Rec., p. 59) ; at the latter precinct he claims 44 defective applications and 
in the answer names only 30 (Rec., p. 59). And many of the applications are 
perfect and complete. (Rec., pp. 1420-1426.) Also at Edom precinct, where con¬ 
testee claims 29 illegal votes, the answer names only 24 persons. (Rec., p. 55.) 

But the astonishing lack of any accuracy whatever in contestee’s figures 
reaches its culmination in his figures as to Ottobine precinct. From his 
table it will be noted that he claims the number of illegal votes to be 24 of 
unknown political affiliation, 15 Democrats, and 27 Republicans, or a total 
of 66. He then calmly sets it down that the elimination of these shows a 
net gain to him of 222 votes. In other words, he claims a net gain of over 
three times as many as all the illegal votes involved. The futility of trying 
to discuss such figures as this is apparent, and contestant will not attempt 
it. If contestee’s figures as to the number of illegal votes is correct his net 
gain would be about 24. 

As a matter of fact the registration at Ottobine has already been discussed 
by contestant and conceded by him to have been void because the registrar 
dictated to the applicants what to write down. See reply brief, pages 51 and 
45, sheet 9, where it will appear that contestant has conceded to contestee a 
net gain of 39 votes, more than he could possibly be entitled to under his own 
figures. 

At the two remaining precincts on contestee’s list. McMullen and Monroe, 
both in Greene County, his figures are equally inaccurate. 

At McMullen he claims 54 illegal votes, while the answer (Rec., p. 51) names 
46 persons. At Monroe he claims 28 illegal votes, whereas only 17 names are 
set up in the answer. (Rec., p. 51.) Although contestee claims all these 
voters registered on defective applications, an examination of the record (pp. 
1713-17, 1727, 1729, 1732) where the applications are copied, shows that most 
of them are remarkably complete and perfect. There are comparatively few 
that omit any detail, and are among the best applications shown in the record. 

Contestant trusts that the members of the committee will look at the applica¬ 
tions printed on the pages referrecP to and he does not think it amiss at this 
point to call again the attention of the committee to a fact which they empha¬ 
size and which affects the merits of this contest: Both of the precincts (McMullen, 
Monroe) are in the Blue Ridge Mountains, and situated in one of the most iso¬ 
lated counties in Virginia, a cotinty untouched by a railroad and without good 
educational facilities. But the population of these two communities is strongly 
Republican in its sentiments. 

Everyone of these applications was made by the registrants without aid-, 
memorandum, or suggestion of any sort, and it is plain that the registrars 


PAUL VS. HARRISON. 


83 


accepted no applications unless they approached a high degree of completeness, 
in every detail. It is obvious, of course, and it is true as a matter of fact, that 
a great many persons in these uneducated sections are unable to register be¬ 
cause of the exacting requirements of the registrar. The committee need only 
recall the manner in which, in Democratic counties like Albemarle and Clarke, 
the books are loaded up with persons who made no application at all and under¬ 
went no test of literacy whatever, to see the effect of such discrimination. To 
say that contestant was not injured by this and unfairly and illegally injured, is 
to deny something too plain for serious question. 

Contestant believes that it will appear to the committee, even from this incom¬ 
plete discussion of contestee’s statement, that the statement tiled by contestee is 
wholly lacking in accuracy and is not prepared in conformity with any definite 
system or contention; that it is useless as any assistance in arriving at true 
results. Contestant again refers the committee to the tabulations appearing 
in the reply brief, giving his assurance to the committee that he is prepared to 
support the figures there set out. 

Mr. Harrison. When this contest was originated we went through the differ¬ 
ent applications, although in my judgment it was idle and futile to have done 
it, because in my opinion there could be no question raised as to the registra¬ 
tion. We went through these applications and we produced the testimony. 
We showed the applications that were defective by the thousands, and we 
proved the party affiliations of the parties. I would like to show that. I sup¬ 
pose that will be admitted by the committee, familiar with election laws, that 
we can prove the party affiliations or party standing of the different voters 
what votes were cast. It would have been impossible to have put the men 
themselves on the stand. It would have meant 25,000 people who would have 
to be examined as witnesses. The mere cost of summoning them and giving 
them the necessary attendance would be out of the question. The idea of tak¬ 
ing 25,000 witnesses and examining them in the time given for the taking of 
evidence would be an impossibility. So we did what was the next thing that 
we could do. We put these men on who were familiar with these people, who 
knew them all their lives and proved what their party affiliations were and 
what their party reputation was. There are the cases, if there is any doubt 
about that. 

Mr. Fletcher. May I read these cases that hold that whatever a person’s 
politics are can be proven by proving his party affiliations? 

The Chairman. I think that is admitted. You may put it in the record 
without reading it. Let Mr. Paul look at it. 

Mr. Fletcher. I am afraid I haven’t it in shape to put in the record that way. 

The Chairman. Very well, you may read it. 

Mr. Fletcher. In Mudd v. Compton (51st Cong., 2d sess., Hind’s Free., sec. 
580. p. 775) votes proven by merely showing the party affiliation of the voter 
were counted by the election committee. 

In Cook v. Cutts (47th Cong., 2d sess., Hind’s Free., sec. 957, p. 267) uniden¬ 
tified votes cast by disqualified persons were proven by testimony as to party 
affiliation and circumstances attending the voting. 

In the Broad Seal case (36th Cong., 1st sess., Hind’s Prec., sec. 799) proof 
of general registration as to political character and party preferences was 
accepted to determine the vote. 

See also Smith against Jackson (51st Cong., 1st sess.. Hinds Free., sec. o80, 


P In O’Ferrell against Paul (48tli Cong., 2d sess., Hind’s Free., sec. 985) the 
committee held that the vote of a disqualified voter could be proved by Ins 
color it appearing from the evidence that the Negro vote was Republican. 

In’the absence of direct proof of how he voted, evidence as to the-voter's 
party, his advocacy of candidate, or the friends who sustained his right to vote 
is admissible. 

Smith against Jackson (51st Cong., 585, p. 765). 

The Chairman. Your time has expired. How much more t me do you 
desire? 

Mr. Harrison. If there are any questions the committee would like to ask 

about this matter, I would be glad to answer them. 

The Chairman. How far do you and Mr. Paul agree as to the number of 

cases in which there were no applications filed? 

Mr Harrison. I do not know. I have no idea, I took from the 
number of precincts. I took from the list the number of voters 
challenged. 


record the 
that were 


84 


PAUL VS. HARRISON. 


And I want to say that some statement was made yesterday that we did not 
challenge anybody. We have hundreds of names that were challenged as to 
their having been improperly registered. 

The Chairman. You did not prove them in your testimony? 

Mr. Harrison. Yes; we did; all of them. I said we did not summon some of 
the men themselves to prove how they voted. 

Mr. Hudspeth. On the day of election has a voter the right to challenge an¬ 
other voter’s right to vote? 

Mr. Harrison. Oh. yes; anybody. 

Mr. Hudspeth. Anybody? 

Mr. Harrison. Anybody. Recognized challenges are allowed to come within 
the prescribed limits. 

Mr. Bulwinkle. For what cause is it allowed on the day of election? 

Mr. Harrison. Any cause that would disqualify the voter. 

Mr. Bulwinkle. Failure to properly register? 

Mr. Harrison. No. I claim that a judge of elections can not be substituted 
in place of the registrar to perform the duties a registrar is supposed to per¬ 
form. 

The Chairman. As I understand your contention, in a nutshell it is this, 
Judge: You contend that if none of these persons who are not properly regis¬ 
tered, according to the provisions of the Virginia constitution, were not chal¬ 
lenged, and no proceedings were brought under the constitution for their names 
to be stricken oft' the list, their votes can not now be attacked. 

Mr. Harrison. Not in this way. 

The Chairman. And you also contend that, even assuming that they could be, 
and going through all these precincts and strictly applying the constitutional 
provision in regard to the tiling of applications in the form prescribed by the 
constitution—if all those votes that were not registered strictly in accordance 
with the provisions of the constitution were thrown out and deducted pro rata, 
instead of reducing your majority it would increase it? 

Mr. Harrison. They will not contend anything else. 

Mr. Paul. What is that? 

Mr. Harrison. You will not contend that, if all the defective applications were 
thrown out. and those where there were no applications at all. it would not 
increase my majority? 

Mr. Paul. I am not prepared to say. I do not think it will make much dif¬ 
ference in the results we claim. 

Mr. Harrison. In the thousands of them introduced party affiliations were 
proven. It is a mere question of arithmetic. I do not think Senator Paul will 
question the fact that my majority would be increased. I figure is at 1,056, 
but I do not believe he will question the fact that my majority would be larger. 
We proved the party affiliations of all these defective applications. 

I do not know how far you gentlemen would like to hear about these other 
provisions in which it was alleged there were violations of the law. 

Mr. Luhring. I wish you would explain the procedure in regard to chal¬ 
lenging a vote. 

Mr. Harrison. For instance, we have party challengers in the various pre¬ 
cincts. Whenever a man goes in to vote, about whose right to vote there is a 
doubt of question, the challenger goes up and challenges him. Then the judge 
passes upon his qualification. 

Mr. Luhring. What does the voter do? 

Mr. Harrison. He stands there until the judge of election passes upon his 
right to vote. 

Mr. Luhring. Does he make an affidavit of any kind? 

Mr. Harrison. Yes. The judge of elections gives him an affidavit and requires 
him to make an oath, and he has to swear to it. Then the judge passes on 
his qualification. 

Mr. Luhring. Is the challenger required to make a counter affidavit? • 

Mr. Harrison. No. That is covered by sections 174 and .175 of this code, 
which read as follows : 

“ Sec. 174. Any elector may, and it shall be the duty of the judges of elections 
to challenge the vote of any person who may be known or suspected not to be 
a duly qualified voter. 

“ Sec. 175. When any person is so challenged the judges shall explain to 
him the qualifications of an elector, and may examine him as to the same; 
and if the person insists that he is qualified and the challenge is not withdrawn, 
one of the judges shall tender to him the following oath; ‘ You do solemnly 


PAUL VS. HARRISON. 


85 


swear that y° u are a citizen of the United States, that you are 

-i^ years old, that you have resided in this State for two years, in this county, 
city, or town for 1 year, and in this district 80 days next preceding this 
election; and that you are, according to your best knowledge, information, and 
belief, not disqualified from voting by the constitution or laws of this State; 
txiat your name is [here insert the name given] ; that in such name you were 
duly registered as a voter of this election district; that you are now an actual 
resident of the same; that you are the identical person you represent yourself 
to he, and that you have not voted in this election at this or any voting place. 
So help you God.' If he refuses to take such oath, his vote shall be rejected • 
if, however, he does take it, his vote shall be received, unless the judges be 
satisfied, from record or other legal evidence adduced before them,' or from 
their own knowledge that he is not a qualified voter, in which case they may 
refuse to permit such person to vote. And they 7 are hereby authorized to ad¬ 
minister the necessary oaths or affirmations to all witnesses brought before 
them to testify as to the qualifications of any persons offering to vote. When the 
vote of any person shall be received, after having taken the oath prescribed in 
this section, it shall be the duty of the clerks of election to write on the poll books 
at the end of the name of such person ‘ sworn.’ ” 

Mr. Rose. In listening to the argument of Col. 
the impression that he asked this committee to 
cinets because there were no applications at all, 


Anderson yesterday I gained 
throw out a number of pre- 
and that if those votes were 


thrown out Senator Paul would be returned as the winner in the election con¬ 


test. Now you say if that is done it will increase your majority. 

Mr. Harrison. No ; I say 7 those people from whom no applications were taken. 
There were a number of these people in every precinct where they registered 
under the old law that required no written application. There were a number 
whose names were not even suggested as not having been properly registered, 
because they were registered by a registrar prior to the date he took office. 
In every precinct there is always a large element of unquestioned votes. 

Mr. Luhring. On the permanent roll? 

Mr. Harrison. When we are once on the roll we stay on the roll. 

Mr. Luhring. You do not have to register for every election? 

Mr. Harrison. No; when we register, once we stay registered. 

Mr. Hudspeth. There were some registered prior to 1904 when no applica¬ 
tions were required? 

Mr. Harrison. What is meant by that permanent roll—that is more of a 
misnomer than it is a true description. The permanent roll is those people* who 
are entitled to vote with assistance. They are the men who were registered 
under the registration of 1903 and 1904. Then comes what we call the annual 
rgistration. and that is a misnomer, because we do not have an annual regis¬ 
tration. It is just a temporary registration of the people that were registered 
after 1904, and that is all it is. He must make a written application, according 
to the statute. 

Mr. Hudspeth. If he registers once in Virginia he does not have to register 
again? 

Mr. Harrison. No. 

Mr. Bulwinkt.e. Unless you leave the precinct and your name is stricken 
from the list. 

Mr. Harrison. Yes. Next fall, when this matter comes up again before the 
people of the district, these very registration books are still in effect, and the 
very people that they are denouncing here as ilegal voters will be voting for 
the next Congressman. 

Mr. Hudspeth. Without any applications for registration? 

Mr Harrison. They voted in the election last fall; they voted in the primary 
election between Col. Reedy and myself—a bitter, hot contest between us. 

Mr. Paul. I think you are mistaken with reference to the qualifications of 
voters. A number of our exhibits were made up almost entirely of women. 

Mr. Harrison. I mean the registration books and methods of registration. 
They were all used last fall. 

Mr Luhring. Is it too late now to take steps to purge this registration list.-' 

Mr. Harrison. Not at all. That could be done at any time. 

Mr Luhring. Of those who voted at this last election? 

Mr H \rrison Those who voted at the last election. I do not suppose the 
contention of Col. Anderson will prevail with this committee for one minute 
that a different rule should be applied to a Democratic voter than to a 
Republican voter. * 


80 


PAUL VS. HARRISON. 


Mr. Anderson. I never made any such contention as that. 

Mr. Harrison. I understood the colonel to argue that because these officers 
were Democrats therefore they could not call in question what they did when 
they registered a Republican voter, but that you could call in question their 
acts when they registered a Demcratic voter. 

Mr. Anderson. I did not make that statement. 

Mr. Harrison. That is in the brief. 

Mr. Anderson. I was asked by the chairman, and I replied that there were 
not two laws for two different parties in Virginia, except in the judgment 
of the Democratic Party. I said it with a smile. That was in reply to a 
question of the chairman. Speaking seriously, I would not contend that one 
law applied to one person and one to another, even in Virginia. 

Mr. Harrison. I ask the committee to read the brief, in which they will find 
a discussion of these other questions. Other questions have been suggested. 

Mr. Paul. Shall I go ahead now? 

The Chairman. Yes. Judge Harrison has used an hour and a quarter. You 
may have the same if you desire. 

STATEMENT OF HON. JOHN PAUL, CONTESTANT. 

Mr. Paul. Mr. Chairman, in the very limited time I have to discuss this 
case and the statement made by the contestee and his counsel on yesterday and 
to-day I fear there may be some things I will overlook, so I am going to ask 
you to start with not to assume that it is anything I have intentionally avoided, 
because there is no aspect of this case we are not willing to go into most deeply. 
If I had my way and could follow my own desires, I would like to talk the best 
part of a day or two about this case, because I feel I know more about it 
than anybody connected with it. I have followed all of the evidence, have 
studied the record since it has been printed, have participated largely in the 
writing of both the opening and reply briefs, and I do not think there is any 
aspect of the case that I have not almost at my finger tips. I would like to 
talk about every feature of it. I will necessarily be limited to touching on 
only certain things, but I will not intentionally avoid any aspect of it. 

In the reply briefs the statement is made, and by me, that the brief prepared 
by the contestee was apparently prepared on the assumption and belief that 
no member of this committee would ever read the record in the case. I felt 
that statement to be justified by the statements made in that brief, I feel 
that -statement to be doubly justified by the relation of facts made by the con¬ 
testee and opposing counsel in their argument. I do not wish to be unpleasant, 
but I think it is only fair to myself to say that I verily believe that 90 per cent 
of the statements made as to what this record contains are absolutely con¬ 
tradicted by the record. 

Mr. Harrison. We give references, page by page, to the entire record. 

Mr. Paul. For those reasons I want most earnestly to request that this 
committee will read carefully the briefs in jthe case. The briefs on my part 
were prepared with great care, apd they are accurate. References are made 
to each statement that we make, to the page of the record bearing it out, and 
if thos references are followed I haven’t the slightest fear that every member 
of this committee will feel justified in supporting the contentions we are 
making, and I feel that our brief but moderately states the real happenings in 
this case. 

For some reason or other the contestee himself has undertaken—and I 
want to dispose of that before I go any further—to inject the race issue into 
the congressional campaign of 1920 in the seventh district of Virginia. Now, 
as admitted by him in his brief, there are very few Negroes in the seventh 
district of Virginia. There are practically none. There are practically none 
in the valley section where I live. There are a few east of the mountains, 
but very few in the district, and the number is not an issue with us in that 
section of the State. 

In spite of the fact that he says the colored voters are always Republican, 
and in spite of the fact that he says they do not vote in the Democratic 
primary, the evidence shows that at Middletown precinct, in his own county, 
they did vote in the primary, and did vote in the primary at which he was a 
candidate. The evidence shows also that at Scottsville the Negroes did not vote 
or voted the straight Democratic ticket, because the judge of election who 
prepared their ballots for them said he prepared them .that way and that was 
wav they wanted them prepared. He says he prepared the straight Demo- 


PAUL VS. HARRISON. 


87 


cratic ticket, which was the way they desired to vote. So they are not all 
Republicans. They are not all Republicans in the little city in which I live, 
because they divide up rather evenly as between the Republican and Demo¬ 
cratic tickets. That is quite often the case where their number is not enough 
to make a controlling factor in the election. 

While on this subject I want to advert for a few moments to the question 
of these colored judges in the city of Charlottesville. Our objections to those 
men as judges were not based solely on the proposition or mainly on the 
proposition that they were colored men. We have no trouble with the colored 
people in the seventh district. They are so few in number that they are not 
a political factor. But I do think we were justified in attacking the fact that 
they were appointed by the electoral board of Charlottesville, because they 
were colored men, and with the intention of being offensive to the white people 
there, as representatives of the Republican Party. That was done over our 
protest, and later, this year, we renewed that protest, even going into court 
about the matter. 

But our main objections to these men lay in these two propositions: That 
to start with they were not Republicans. One of them testified that he voted 
for Mr. Wilson both times he was a candidate, though he says he voted for 
Harding. The testimony of his general reputation around the city, by the 
Democratic politicians themselves, was that he was a Democrat. One of 
them did not vote the Republican ticket at the 1920 election. He denied that 
he voted at all, although he was a judge of election. As to a third of these 
judges, we do not know who he voted for. He said he had voted in 1916, as 
well as he could remember, for the man who was then President, which would 
have been, of course, Mr. Wilson. He did not know the names of the candi¬ 
dates at the 1920 election, or at any election in the past. The other one was 
not a witness in the case. 

Three of these men were old and were ignorant. The man who was a judge 
of election in the fourth ward of the city of Charlottesville, where many of 
the university people voted, was a man who could not read. He could not 
write so you can read it; Some of his writing is filed in the original record 
in this case, on a sample ballot he attempted to mark, and you can not read 
what he wrote on the back of it {it our dictation. We asked him if he could 
mark a ballot, and presented him with a sample ballot, which was practically 
a duplicate in size and form of the official ballot, and asked him to mark it 
for the Republican t'ck'et. He took 22 minutes in the operation, and when 
he had finished, he had marked off the name of Mr. Coolidge, which absolutely 
invalidated the ticket, and had succeeded in marking off the name of one 
of the Socialist electors. That was what he did after 22 minutes of unin¬ 
terrupted trying. He is the man referred to here as a man of high intelligence 
and an efficient judge of election who represented the Republican Party. 

That :s what we were objecting to. and we had a right to object to it. Why, 
right there in Charlottesville there were hundreds of respectable, intelligent, 
able, white people, whose names we had furnished to these people, asking 
that they be appointed as judges of election. These colored men. by virtue of 
their race, by virtue of their ignorance, were entirely subservient to the Demo¬ 
cratic judges. They were mere figureheads. As the evidence shows, they 
took no part in the conduct of the election, except to stand there and hand 
out ballots. They d'd not look on the poll-tax list to see if a man’s name was 
on there, or on the registration books to see if his name was there. They 
could not have read either one of them. At least Buckner of the fourth ward 
could not. I trust the committee will look at the ballot in the original record, 
and the photographic copy we filed, which shows the class of men they put 
on in the city of Charlottesville, which they speak of as the Athens of America, 
to represent the Republicans, when they had the opportunity to put people 
on there who were really efficient and did represent the Republicans. 

Mr. Fletcher. May I ask you a question? 

Mr. Paul. Yes. 

Mr. Fletcher. Can you find anywhere in this record anything to show that 
prior to the election of 1920 you or any Republican ever asked that the Negro 
judges in Charlottesville be removed and any white man he appointed in their 

places? . 

Mr. Paul. I think it is indicated in the record. I am not certain. The protest 
we filed, which was published in the papers and filed with the electoral board, 
was not copied in the record. It is an actual fact, and you know it to be a 


88 


PAUL VS. HARRISON. 


fact, that protest was made by M. L. Price, secretary of such Republican 
organization as existed in the county. 

Mr. Fletcher. That question came up on the train with Mr. Hammer, and 
I told b in I would give him a check for $50 wherever it appeared. 

Mr. Paul. Don’t get into an argument and take up my time. I am not 
posit've that it is in the record, hut that is a fact, and you know it. 

The Chairman. I do not consider that any of this is material to the facts 
in the case. 

Mr. Paul. All right, sir. 

I think that the presentation of the election laws of Virginia was ably 
made by Col. Anderson on yesterday. 

Occas'on was taken on yesterday to read a partial statement or partial 
account of a speech made by him in which it is claimed that he lauded the 
constitution of the State of Virginia. I know of no place where he lauded the 
election laws of Virginia, but that is entirely beside the question. 

We are not attacking in this case, on the merits of this controversy, the 
election laws of Virginia. They are the laws of the State, and we are forced 
to operate under them. It. is evident to the members of this committee that 
they discriminate against us; that they were framed with the purpose of keep¬ 
ing the party that framed them in power; but, nevertheless, that is the law 
and we are forced to operate under it. What we do complain of and what 
this record shows has been done is this: That having made- these laws 
giving themselves every advantage, discriminating against us, putting us un¬ 
der every handicap, not content with the advantages which the laws have 
given them, whenever they find themselves in jeopardy, by any chance, of 
losing control of the district, they violate the very laws they themselves have 
made in order to obtain a special advantage outside the law. 

Mr. Bulwinkle. Is there any evidence that that is so in this record? 

Mr. Paul. I think so. I hope to show it. If I have the time, I hope to 
show it to you conclusively. 

You familiar also with the make-up of the election machinery. I es¬ 
pecially want to refute the statement made yesterday that all these men were 
absolutely judicial in their attitude. We made no attack on the judges of 
the circuit court of the State, but they are Democrats. The only one who 
testified admitted that he was a Democratic partisan, Judge Dabney. I have 
nothing against Judge Dabney. He is one of my close friends, but he is a 
Democratic partisan, and so to a greater or less degree are all the rest of 
them. The mere fact that having the power to appoint the electoral boards 
of three persons, they appointed them all Democrats, shows in itself their 
partisanship. Partisanship does not necessarily involve corruption, and we 
did not mean it in that sense. 

Mr. Rodenberg. But is it not a violation of the law to appoint three from 
one party? 

Mr. Paul. No. 

Mr. Rodenberg. They have that right in Virginia? 

Mr. Paul. Yes. 

Mr. Rodenberg. Do you mean to say they appoint a partisan board con¬ 
sisting of all three members from one party? 

Mr. Paul. Yes. All three members of the electoral board are Democrats. They 
have that power. I say they show their partisanship by not following the 
ordinary custom in appointing one Republican. 

Mr. Hudspeth. The law says “as near as possible” they shall give the 
minority a member. 

Mr. Paul. No; that applies only to judges of elections. That is the only 
one of the election officers from top to bottom that we have any opportunity 
with, one judge of election out of three. There is no limit on the electoral 
board, no limit on the clerks of election, no limit on registrars, and of course, 
they are all Democrats, and the judges of the circuit court, the appointing 
power, are Democrats. 

The Chairman. Isn’t it a fact that all the registrars who made up the 
voting lists in the entire district are Democrats? 

Mr. Paul. On yesterday Mr. Fletcher cited five different precincts where 
it developed the registrars had voted for me. Those were the only ones out 
)f the 157 precincts where the registrar is not a Democrat, Those five he 
mentioned were appointed as Democrats, and for some reason or other, pos¬ 
sibly because of some difference with Judge Harrison, or some personal rea¬ 
son, those particular five, voted for me. But the system is, of course, that 
the registrar shall be a Democrat. 







PAUL VS. HARRISON. 89 

Mr. Fletcher. There is no proof that all the registrars of the 157 precincts 
were Democrats, because there was no evidence taken in all of them. 

Mr. Paul. That is true. It is true of all precincts that are called in ques¬ 
tion. Some precincts were not called into account. 

Mr. Fletcher. There was no evidence taken in Warren County. 

Mr. Paul. That is right. There was no evidence taken in Warren County. 

They say it is impossible to get Republican judges. I want to say something 
about that. The testimony of Mr. Caver, of the electoral hoard of Clarke 
County, and Mr. Dunn of Albemarle County, appears in the record. If the 
committee will investigate they will find neither of those men made any attempt 
to get Republican judges. It does not do to say the Republicans did not insisc 
on having them. It is the duty of the hoard, under the law, to get them. In 
those two counties, where the Republican vote is comparatively small, there was 
no particularly efficient organization. It certainly could not be said to be the 
duty of the Republicans to go and insist and point out the judges of election 
to be selected, and even when they did, judging by their experience in Char¬ 
lottesville, it did them no good, and judging by our experience everywhere else, 
it did them no good. If you will read the testimony of those two gentlemen you 
will find they made no attempt to get Republican judges anywhere. They made 
no serious attempt to perform their functions in any way. They turned the 
selection of judges over to the Democratic workers, as disclosed very plainly 
by the evidence of Mr. Dunn. 

He testified lie appointed a Mr. Austin at Proflits as a Republican judge. Mr. 
Austin said he was a Democrat, had always been a Democrat, and there hadn’t 
been a Republican judge in his precinct for 10 years. 

He testified Mr. Wood was a Republican judge in his own precinct, Mr. 
Dunn’s own precinct; mark you, in Mr. Dunn’s own precinct; and the evidence 
showed Mr. Wood was working for the contestee on election day. That is the 
kind of Republican judges we have had handed to us right along. 

Those conditions did not obtain in Page and Rockingham Counties, where we 
have Republicans on the board. Until a few years ago we had no Republicans 
in those counties, and some very shady work, I might say, was going on with 
election judges being switched over night. We went after the electoral board 
so vigorously and criticized the judge of the circuit court himself so severely 
that when the next vacancy came around he appointed one Republican member 
in each county on the electoral board, and since that time we have had com¬ 
paratively little trouble, and you will find the conduct of the election judges in 
those two counties is not questioned. 

Mr. Fletcher. There is nothing in the record about your criticizing the judge. 

Mr. Paul. No ; that is not in the record. 

I said a few minutes ago that the theory of our case is that, having made the 
law which discriminates against us to start with, they then violate the law for 
their own benefit. When the new constitution .went into effect it was based 
upon the proposition of eliminating those who could not stand the educational 
test provided for registration or in the preparation of a ballot without assist¬ 
ance. Immediately, for instance, in the Republican communities that law is 
strictly enforced. It has always been enforced in my county, so far as I know, 
with the exception of one or possibly two precincts. It has always been 
enforced in Greene County. The latter is a county where you would think they 
might be lax in regard to the law—a little isolated county with no railroad in 
it. "the people not particularly well educated, a poor school system, but heavily 
Republican. The law is so strictly enforced there that I tell you I have gone 
into court in the last six months in three different cases from one precinct to 
compel the registrar to put on the books men who were denied registration for 
mere trivialities, contrary to the statement made yesterday that nobody was 
refused registration in Greene County. McMullen was the precinct cited. The 
record shows there was continual trouble there about people being refused regis¬ 
tration. and the registrar did refuse it to a good many people who could not 
make their applications to suit his peculiar taste. I say the law is strictly 
enforced in all the Republican communities. 

The Chairman. What do you say to Judge Harrison’s statement that if you 
enforced the provisions of the constitution strictly with regard to the form of 
the applications and the questions to he answered there would be thousands of 
Republicans votes thrown out? 

Mr. Paul. As to his contention in regard to defective applications? 

The Chairman. Yes. 

Mr. Paul. I do not agree with that proposition at all. Undoubtedly some 
would be thrown out, but undoubtedly there would be a good many more Demo- 


90 


PAUL VS. HARRISON. 


cratic votes thrown out which we did not include. I am coming to the matter 
of defective applications in a minute, and I will make my attitude clear on that 
at that time. 

Now, if you go into Albemarle County, and Clarke County, and Frederick 
County, you will find that the regulations in regard to registration are not 
enforced. They are right back where they were before the constitution of 3904. 
They do not have to make an application, and they do not have to go through 
any educational test. The result is what? The result is, as this record shows, 
that in Albemarle County there were 425 people put on the books in 1920 whose 
registrations were absolutely void. They did not make the application required 
by law. The registration showed previous to that time 166 others. 

In Charlottesville there were 640 put on the books without any compliance 
with the registration laws at all, and 86'shortly before that. In Clarke County 
there were 301 put on the books in 1920; in Frederick County there were 266 
put on the books in 1920; and a few years preceding that there were 621, mak¬ 
ing a total of 887. None of them ever made any application whatever of any 
sort, shape, or description to be placed on that book. There was no test as to 
whether they could read or write or anything else. 

That does not include conditions in Winchester, which are worse than any¬ 
where else in the district, so far as registrataion is concerned. There were 
put on the books in the three counties and one city mentioned in 1920, 1,632 
people, and right previous to that 1,031, making a total of 2,663, of whom 
1,940 never made any sign of an application of any sort or description. That 
is in these heavily Democratic communities. Why is that done? Because 
they know that in Albemarle County, where three-fourths of the population is 
naturally Democratic, people who are going to vote the Democratic ticket, 
they do not care who goes on the books. The more they got on their books the 
more votes they would get. Did not the registrar in Winchester, when asked 
why he did not require a written application, say he thought it was “ their 
purpose ”—who “ their ” was he did not say—but he thought it was “ their 
purpose to get as many people on the books as possible? ” Another registrar 
in the same county says he registred 16 women last year and he did not think 
any of them could have registered if he had required written applications. One 
registrar said it was a fool law, anyhow, and that the registrar before him told 
him to take for granted they could read and write. 

Mr. Ltjhking. In those cases did they require them to make an oath? 

Mr. Paul. In some cases they did and in some they did not. Taking an oath 
did not involve anything more than their ability to write their name. 

What was the result when they came to Rockingham County? In Rocking¬ 
ham County, my own county, there is one magisterial district known as Stone¬ 
wall District, which was a very heavy Republican district, and the population 
was Republican by about two or two and a half to one. In 1900, before this 
constitution came into effect, at Port Republic Precinct the Republican ma¬ 
jority was 134. As soon as the rigid requirements for registration came into 
being the Republican majority was cut to 30 at the next election in that pre¬ 
cinct. The Republicans lost 125 votes, the Democrats lost 21. 

Mr. Hudspeth. Are there any Negro voters in that precinct? 

Mr. Paul. Not over 2. In the whole district of Stonewall there are not 15 
Negroes. 

Mr. Hudspeth. How many did you say the Republican vote was cut? 

Mr. Paul. One hundred and twenty-five, and the Democratic vote was cut 21. 

At McGaheysville the Republican majority was 120 in 1900, and in 1904 it 
was 36. 

Mr. Bulwinkle. Senator Paul, when you say “ cut,” do you mean they made 
an attempt to register and were denied registration in 1904? 

Mr. Paul. I am coming to that. 

Mr. Bulwinkle. I would like to know as to that particular place. 

Mr. Paul. You will understand, Mr. Bulwinkle, that was years before the 
facts surrounding this case. 

Mr. Rodenberg. What do you mean by that word “ cut ”? 

Mr. Paul. Here is what I mean: In 1900 the total vote in Port Republic was 
268; in 1904 the total vote in Port Republic was 122. They enforced these 
rigid requirements against registrants, and no more people could register. 

Mr. Bulwinkle. There were 166 people that did not vote? 

Mr. Paul. That is right. 

Mr. Bulwinkle. Did any of those 166 make any attempt to register and were 
denied registration? 


PAUL VS. HARRISON. 


91 


denied. PALL Uruloubtedl y» sir - We are not complaining because they were 

nlways^a^ega^voter^ llOUgh4 Judge Harrison said if one registered once he was 
Mr. Bulwinkle. After 1904. 

enforcintVh^w ^ tn, T' 1 am t 7 ll, 8 to sho "' you the difference between 
I„ other word7 JL C " g ““ CoUn . ty . and not doin S « i» Albemarle County, 
they cut lfn.7f,f 0n restrictions were so rigidly enforced that 

home c m v wl nn • I can go into my home town, my 

, ( , H11 / ’ 'Miuli is one of the most intelligent in the State with one of the 

hundreds *of merT wh , perfect V v f'^Iigent white population, and point out 
been able tf. do h ? T e re !' cllte,:> attem P ts to register and have never 
law snicny against tie™ " eomI,,a,mn S the registrars enforced the 

l/f Chaieman. Your complaint is that in Albemarle County they do not do it. 
ti , , F ‘ Avr ~ complaint is that in Alliemarle County there are no restric- 
tions If you take the registration restrictions off in Rockingham, like they are 
in Albemarle, I can come out of Stonewall district with 800 majority, no matter 
how popular their candidate is. The votes are there. They can not get on 
me hooks, because the registration requirements are enforced against them. 

it was stilted here toMay—and that show’s the inaccuracy of some of the 
statements these gentlemen make—that at Port Republic they took no written 
applications. Let us see what Mr. Maupin says, the registrar there. 

Mr. Hudspeth. Is this the form of the application? 

Mr. Paul. Yes. 


^Mi . ITi dspeth. In that he has to state his name, his age, where born his 
residence, his occupation, and if he ever voted before. Is that all that is re¬ 
quired under your law? Is there anything else that a man has to state in 
order to register? 

Mr. Paul. The constitution provides that he shall make an application in 
liis own handwriting, stating certain facts. 

Mr. Hudspeth. Is that all lie has to state? 

Mr. Paul. Those are the essential facts he has to state. 

Mr. Hl’dspeth. Can not any citizen state those? 

Mr. Paul. Not every citizen can write that out to the satisfaction of the 
registrar. 

Mr. Rodenberg. The registrar is the sole judge? 

Mr. Paltl. The registrar is the judge. I tell you, sir—this does not appear 
in the record—in my home town I have known the registrar to turn them down 
repeatedly because, in making out their application, they did not address them 
to “ so and so, registrar.” They stated the essential facts, but did not address 
him by his title, and in his view the registration was not complete. That 
registrar is an honest man, but he is very strict in upholding the law 7 literally, 
and the result is that people there are turned down. 

Mr. Hudspeth. Were these blanks promiscuously circulated among the voters? 

Mr. Paul. You will find in this record reference to voters being tutored. 
We have to teach our people to register. There is not a man in this room, 
outside of those who reside in Virginia, who can come down to my town and 
go to the registrar and register. You would not know what the law 7 w 7 as, to 
start with. The registrar w 7 ill not give them the law 7 in a good many instances. 

The Chairman. They have to remember all these questions? 

Mr. Paul. We have to teach them these things. We distribute that in the 
form of a memorandum, teaching these people how 7 to register. 

Mr. Hudspeth. Are they distributed before the registration? 

Mr. Paul, l^es; by the thousand; but you can not take those in before the 
registrar. You have to memorize that and get rid of it. You can’t take it be¬ 
fore the registrar. 

The Chairman. As I understand it, they are allowed to look at these leaflets 
outside and study them? 

Mr. Paul. Yes. 

The Chairman. When they go down there they have to remember these ques¬ 
tions and make their application to so and so, “ registrar, I apply to register 
in such and such a precinct, such and such a county.” They have to remember 
all these things and put them down. 

Mr. Paul. Yes. 

The Chairman. They have to remember all those questions? 

Mr. Paul. Yes. 


92 


PAUL YS. HARRISON. 


The Chairman. And if they leave out any one of them, it is not correct? 

Mr. Paul. The last man I went to register with was turned down because he 
omitted the last one, saying he had never voted, although his age showed that 
he had just come of age a month before that and could not have voted. The 
registrar turned him down because he didn’t have that stated. He was an in¬ 
telligent boy, but he omitted that. 

Mr. Rodenberg. Could he not try it again? 

Mr. Paul. He could try it again; yes. He could come back later and try it 
again; that is true. 

Mr. Fletcher. There is no place in this record showing where they were 
turned down by a registrar in Harrisonburg. 

Mr. Paul. Oh, yes. I think Mr. Warren admitted he turned them down. 
There is no evidence as to the registrar in the first ward, Mr. Martz, because you 
didn’t put him on the stand. Repeatedly they turned them down. 

You said yesterday, Mr. Fletcher—and you were in error—that there was no 
evidence to show that anybody was turned down in any of these precincts. In 
Ottobine precinct the registrar says he turned a number of them down because 
they could not read or write intelligently. When asked if they could sign their 
names he said, “Yes; they could sign their names, but they had to do more 
than that. They had to write out an intelligent application before I would 
register them.” 

Mr. Hudspeth. Have you a summary of those who were turned down in the 
district by the different registrars? 

Mr. Paul. No, Mr. Hudspeth. I am not complaining of those being turned 
down. Those registrars are simply enforcing the law strictly as it is written, 
and that is all I ever asked. We think they are unduly harsh, but we can not 
complain of a literal enforcement of the law. 

Mr. Hudspeth. That is not in issue in this contest. 

Mr. Paul. No. What we complain of is holding down the vote in Republi¬ 
can communities by the hundreds, because they can not register to suit their 
ideas, and at the same time going into communities that are four-fifths Demo- 
cratic'and putting everybody on the books, whether they can read and wr'te or 
not, and after putting them on the books they take them to the polling place 
and mark their ballots for them and do away with test also. 

Mr. Hudspeth. Is it your contention that where they did not enforce the 
registration law strictly the vote of the entire precinct should be thrown out? 

Mr. Paul. We make this contention, Mr. Hudspeth: Where we are able to 
show certain specific votes illegally registered we do not ask for the whole 
precinct to be thrown out. We simply want those individual votes thrown out 
in those cases; except that we have shown certain precincts where four-fifths of 
the registration was void, and we do say those precincts ought to be thrown out; 

Mr. Hudspeth. The entire precinct? 

Mr. Paul. Yes. There are just a few of those precincts. 

Mr. Hudspeth. Do you name those in your brief? 

Mr. Paul. l"es; they are tabulated in the brief. 

I hope to have made my views plain on that, because that is the basis for the 
discrimination. They say there is no discrimination. The registrar at Ottobine 
testified he refused registration to a number of people. He named some of 
them. He could not name them all. Most of them were Republicans. I think 
he named three Republicans, one Democrat, and said there were some others. 
This registrar did not discriminate between Republicans and Democrats indi¬ 
vidually, but he was enforcing the law at a Republican precinct where he knew 
the people would like to register, and where they were in the main Republicans. 

Mr. Fletcher. Did> he not give them a form to follow in that precinct? 

Mr. Paul. He did, and some of them could not do it. 

In Albemarle County we do not claim they discriminated between Republi¬ 
cans and Democrats individually, but they went into precincts that were nor¬ 
mally four-fifths Democratic and threw the books wide open and allowed them 
to put on everybody in the community. 

Mr. Rodenberg. Have you proved that in the record? 

Mr. Paul. We have proved that absolutely in the record'. I could quote large 
numbers of them to you, but I must hurry on, as my time is passing rapidly. 

They said on yesterday there were no written applications taken at Port 
Republic, in my county. That is one of the precincts I mentioned as being 
a strong Republican precinct, where they held them down. This is what the 
registrar says, on page 1236 of the record. 

“ Q. Mr. Maupin, you live at Port Republic?—A. Yes, sir. 


PAUL VS. HARRISON. 


93 


“ Q. You were registered at that precinct in the year 1020?—A. Yes, sir. 

“ Q* How long have you been registrar? —A. S lice 1904, I think, about that 
time. 

“ Q- Did you require written applications from persons applying to you for 
registration?—A. Yes, sir. 

“ Q. In making out those applications were they permitted to have any 
assistance, aid, or memorandum, in writing their applications?—A. No, sir? ” 

Mr. Harrison. That was after 1920. I said before January 1, 1920, they took 
no written applications. 

Mr. Paul. Judge, you are mistaken about that. I will not search the record 
through, but you evidently have the wrong precinct in mind. These were 
statements made in the brief in regard to Port Republic, where the law was 
strictly enforced. 

Mr. Harrison. At Ottobine precinct the registrar required them to sit down 
and till them out. 

Mr. Paul. And then turned a lot of them down because they could not write 
to his satisfatcion. 

Gentlemen, that is simply an example. If you want the evidence, the book 
and page are noted in my brief. That is only one precinct. There is nothing 
I would like'so much for this committee to do as to take the precincts in Albe¬ 
marle and Frederick and Clarke Counties and list them, and the precincts iii 
Rockingham and Greene and Shenandoah Counties, and compare them in this 
record, just picking them at random. If I should pick them you might think it 
was not at random. You will find that in Greene and Rockingham, recognized 
Republican counties, as these gentlemen said themselves, there were only three 
precincts where the registration was not literally complied with. There were 
certain other precincts in Shenandoah County where the registration was not 
complied with, about four, Strasburg, Woodstock, and some other places. They 
were always classified as strong Democratic precincts. 

And the registrars admit that. One admitted that when he put those women 
on the books last fall he thought the majority were Democrats. One registrar 
was asked: 

“ When you registered these people without application, did you not believe 
they were going to vote for Judge Harrison? ” 

He said: 

“ Well, I hoped they would.” 

They carried it on down to the individual precincts. In the strong Demo¬ 
cratic precincts they threw the lid off; in the strong Republican precincts, they 
enforced the law right up to the hilt. They discriminated on the wholesale 
scale, and this record shows it. 

Mr. Fletcher. They did not take the oath in Greene County, Mr. Paul? 

Mr. Paul. Mr. Fletcher on yesterday, speaking of these precincts where no 
applications were taken, said no one was refused registration in these precincts. 
Certainly they were not refused. That was the purpose of it, because they were 
not put through the test. There was no occasion to refuse them. I have a 
notation of a lot of precincts which combat the statements made in that regard, 
but I have not time to go into them. They stated that in Republican counties 
nobody was refused application. The record is full of instances where regis¬ 
trars said they refused applications. They said they had to do more than write 
their names. 

Mr. Hudspeth. Do you cite those in your brief? 

Sir. Paul. Yes. They are not tabulated, but they are all in the brief. I think 
our briefs are very complete. 

Sir. Hudspeth. Have you got them tabulated? 

Mr. Paul. No. 

Sir. Hudspeth. I would like to have those. 

The Chairman. He says he does not make an issue of that. 

Sir. Paul. We are not complaining because the law was rigidly enforced. We 
think it was unduly harsh, but we are complaining about throwing the lid off 
everywhere else and loading up the books. 

The Chairman. You claim that if the law had been rigidly enforced all 
through the district you would have been elected? 

Sir. Paul. Yes. It is said that we acquiesced. It is said that we acquiesced 
in that procedure. 

Sir. Hudspeth. Sir. Chairman, what I would like to get is, if either of these 
gentlemen can give it to us, a tabulated list of those refused registration in the 
different precincts. 


94 


PAUL YS. HARRISON. 


Mr. Fletcher. I venture to say you could not find 50 names in tlie whole 
district who were refused registration. 

Mr. Hudspeth. Either on account of defective applications or anything else? 

Nil*. Fletcher. Yes. The number would be negligible. 

Mr. Paul. We did not go into that. When the registrar of the precinct, acting 
in a judicial capacity, after an application had been duly made to him, refused 
it, we did not go into the question of how many he had refused. 

Mr. Hudspeth. I take the position that where a registrar abuses the power 
he has and deprives a legal voter of the right to vote, I would like to know that. 
Mr. Paul. All right, sir. 

Mr. Hudspeth. I think that is a gross abuse of power. 

Mr. Paul. The incident Mr Fletcher referred to in his own county, in Amiss- 
ville, was where the registrar arbitrarily refused absolutely to register about 
12 or 13 colored women, and they made applications, and they were good appli¬ 
cations. He refused to register them, and held the applications and sent them 
back to them too late for them to appeal. 

The Chairman. Senator, do I understand that you simply asked these regis¬ 
trars in Republican counties, as well as in Democratic counties, in respect to 
these matters, for the purpose of showing that in the Republican counties the 
law was strictly enforced and in the Democratic counties it was hot enforced? 

Mr. Paul. Not solely for that; but in the Democratic communities, when they 
said they had never taken any written applications for registration, we made 
them tell us who had registered and who had voted. 

It has been said we acquiesced in this procedure. I don’t know who they 
mean by “ we.” I was a candidate for Congress in 1920 and I was a candidate 
for Congress in 1916. In my county the law is rigidly enforced, excepting at 
one precinct, Mount Crawford, a strong Democratic precinct, and in Ottobine 
precinct, where the registrar pursued a method of his own. He made them 
write out applications. He was a school-teacher, and he introduced his own 
methods into it. 1 think the registration was possibly illegal. Anyhow, those . 
were the only two precincts where there was any question about it, except 
possibly a remote mountain precinct where only a few registered, eight people 
in the course of several years. I did not know about that, and I was amazed 
to find the conditions existing in Albemarle County and in Frederick and Win¬ 
chester. 

Judge Harrison says he thinks the registrars in Winchester violated the 
law when they registered people like they did. without any applications. That 
means one of two things. That means, if lie knew they were violating the law 
he acquiesced in it by not protesting: if he did not know they were violating 
the law, he has lived in that city for a good many years, and if he did not know 
they were violating the law in Winchester he can not expect me to know they 
are violating the law in Albemarle County. As a matter of fact, we did not 
know. 

Registration in Virginia is not a great event. It is a permanent matter. 
Once a man is on the books, he is always there unless he is stricken off for some 
reason. Only a few people register each year, and it is not a public event which 
attracts attention. We simply didn’t know it. We didn’t know it until long 
after the election. 

It is said that we should have proceed under section 107 to have all these 
names stricken off. We didn’t know it. We could not have proceeded that 
way, anyhow, in the limited time of about 20 days to attack all this great num¬ 
ber of registrations. That was a new question that year, because a great many 
women had just been enfranchised. We have attacked in our notice only those 
registrations prior to the 1920 election. We have not gone back and attacked 
the registrations in years prior to that; only those just prior to the 1920 elec¬ 
tion, when thousands of people were put on the books illegally. 

Mr. Luhring. What is your contention about those who did not make written 
applications and those who made defective applications, as to whether one was 
void and the other voidable? 

Mr. Paul. It seems to me that is a comparatively plain proposition. I 
think Judge MacLemore’s decision determines—and it is very logically set out 
l iere —that as to tliqse who make no application, the registration is void. The 
registrar obtains no jurisdiction over those people. The law does not say, the 
constitution does not provide, that the process of registration is by the 
making of a written application. It provides that people shall be entitled to 
be registered, provided they have done a certain specific thing, that is, making 


PAUL VS. HARRISON. 


95 


a written application in their own handwriting, presenting that to the registrar 
and giving him jurisdiction over them. After that he becomes a quasi-judicial 
officer. There can not be any doubt about that. 

Mr. Lurking. How is he going to acquire jurisdiction when a man is physi¬ 
cally unable to make a written application? 

Mr. Paul. I do not think the statute provides any procedure for that. I 
may be mistaken; but I do not recall any. I think it is contemplated that he 
will ask these questions and obtain the necessary data by that method. I 
think the purpose of that provision of the constitution that he shall have the 
right to ask questions, was to enable him to get for liis registration books the 
data necessary, so an applicant can make a thoroughly complete application 
to start with. The registration books are tabulated, columned. Each one 
had a heading, corresponding to the essential things to be stated in the 
application. He fills out these blanks from the application. If that application 
is not complete and perfect, then he has a right to ask questions to complete 
his data. 

Mr. Luhbing. We are confronted with the presumption, to begin with, that 
every officer does his duty. Here is a registrar who places them on a book with¬ 
out written application. Under the law, a man physically unable to make a 
written application is entitled to be registered. How are you going to ascertain 
the fact that these men who did not make written applications were physically 
able to do it? 

Mr. Paul. I think the registrars were asked that question in some instances, 
but it itf a violent presumption, I think, to presume that where a man had 
registered 100 people before the 1920 election every one was physically 
disabled. 

Mr. Luhring. It might be violent, but it is legitimate. 

Mi-. Paul. And, mark, you, if the man comes there and is physically disabled, 
he must ask those questions. He must keep those questions. He must reduce 
them to writing and keep them. That is what the law says. He must keep 
them, just as he is supposed to keep the applications. If he has no applications, 
no questions or anything else reduced to writing, then certainly there is no 
presumption of physical incapacity or anything of that sort. 

Mr. Luhring. That is what I wanted to clear up in my own mind, if I could. 

The Chairman. Is there any provision in the constitution of Virginia with 
respect to a man physically unable to make an application? 

Mr. Paul. No : it does not seem to be set out how he shall proceed. 

The Chairman. It is not provided for? 

Mr. Paul. No ; not in terms. 

The Chairman. Do you mean to say that, so far as the constitution is con¬ 
cerned, unless a man can make a written application in his own handwriting, 
without assistance from anybody, he can not register and qualify himself to vote? 

Mr. Paul. As I have said, having made the written application and given the 
registrar jurisdiction, then the registrar becomes a quasi judicial officer. Mr. 
Saunders, in the letter in this brief, cited in the brief, touches on that proposition. 

Mr. Luhring. In those cases where people have attempted to make written 
applications, no matter how defective in form they might be, that gives the 
registrar jurisdiction? 

Mr. Paul. That is right. Then he is a judicial officer. 

Mr. Luhring. Then, you are not permitted to attack the action of that regis¬ 
trar in a collateral proceeding such as this? 

Mr. Paul. That is our contention. I notice there appears to be some question 
in the minds of the committee with respect to that. I think there is the greatest 
difference between no application and the fact that a man has made a written 
application and performed his duty as the law requires. There is a duty on the 
voter as much as on the registrar. It does not do to say the man did everything 
the registrar required him to do. There is a duty on him as much as on the 
registrar. Having made none at all, the registration is absolutely void. That is 
settled. It does not have to be attacked within any special time. It is void. 
That is all there is to that. 

If he has made a written application, as the constitution requires, the regis¬ 
trar has jurisdiction to act and is a quasi judicial officer. We may think he made 
a mistake in putting that man on, was unduly lenient or unduly harsh, but 
he has the right to do it, giving the man the right of appeal to the circuit court. 

Mr. Hudspeth. In answer to Mr. Luhring’s question, the constitution seems to 
provide that if a man is unable to make a written application, then he shall 


96 


PAUL VS. HARRISON. 


answer under oath certain questions affecting liis qualifications as an elector 
which shall he propounded to him by the officer in charge of the registration, 
which questions shall be reduced to writing, certified by said officer, and a copy 
placed in the official record. 

Mr. Luhring. That is what I thought that says, but Col. Anderson and I did 
not quite agree on it. 

Mr. Anderson. I do not think so, Mr. Luhring. I undertook to make it clear 
that where the man could not make the written application, then the questions 
must he preserved and the record made up by question and answer and certi¬ 
fied by the registrar, which takes the place of the application. 

Mr. Luhring. Then, the questions these men have been asked come under a 
different section? 

Air. Anderson. No; they use that section for that purpose. 

Air. Luhring. They would not use it under another section of the consti¬ 
tution? 

Mr. Anderson. I do not think so. 

The Chairman. Your contention is, as I take it, that unless the registrar, 
in case a person is physically unable to make out an application, reduces 
those questions he asks this man to writing and files them with the record 
to be preserved- 

Mr. Paul (interposing). He has got to do that just as much as to take a 
written application. 

The Chairman. If there is no evidence that he ever received a written 
application and filed it, and no written application ever existed, and no memo¬ 
randum of any question asked him was ever filed, then he did not comply 
with the law. 

Air. Paul. Exactly. 

Mr. Anderson. The constitution requires a complete written record of every 
man. 

Air. Paul. That is right. The constitution requires a complete written record 
of every man as a necessary requirement to make that man a legal voter. 
When he is physically disabled he reduces the questions and answers to 
writing under oath. That is a record holding him to the statements he has 
made. 

Air. Bulwinkle. Did you say you live in Shenandoah County? 

Mr. Paul. Rockingham County. 

Air. Bulwinkle. AVhat is the population of Rockingham County? 

Air. Paul. I would say about 30,000 or 31,000. 

Air. Bulwinkle. What is the population of Albemarle County, including 
Charlottesville? 

Air. Paul. I did not include the city of Harrisonburg in the population of 
Rockingham County that I just gave you. 

I could not tell you what the population of Albemarle County is. Char¬ 
lottesville has about 10,000 or 12,000 people. 

A A 7 oice. About 40,000. 

Air. Bulwinkle. The County of Albemarle has about 40,000. 

Mr. Paul. Even this so-called letter of the attorney general, in the con- 
testee’s brief, bears out this very contention we make on this question: 

• “ Is a registrar an instructor, or a judge of the qualifications of a person 
applying for registration? 

“ Under the constitution a registrar is not an instructor. The second para¬ 
graph of section 20 of the constitution expressly provides that ‘ unless physi¬ 
cally unable, the applicant shall make application to register in his own hand¬ 
writing without aid, suggestion, or memorandum in the presence of the regis¬ 
tration officers.’ If he does not do that, the registration is void. I think that 
is well settled.” 

The attorney general further says: 

“ He is, however, a judge of the qualifications of the person applying to 
register.” 

A judge when? After the applications are made and presented to him. 
Then he is a judge of whether the man has complied with the law and is 
qualified to register. 

Air. Luhring. Are you prepared to state the result in the event this com¬ 
mittee should hold those who made no written applications were illegal and 
void voters and should throw those votes out? 

Mr. Paul. It is all tabulated right in the brief. 

The Chairman. Please give us the page number of that. 



PAUL VS. HARRISON. 


97 


Mr. Anderson. Four hundred and fourteen majority for Paul. I will give 
you the page in a moment, while Mr. Paul proceeds. 

Mr. Gilbert. What would be the result if, in addition to those who made no 
applications, that ruling was applied to those who made defective applications? 

Mr. Paul. I have not figured that out, because I have had such absolute 
assurance that there is nothing in that contention about defective applications. 
When we went to taking evidence, when we came to a precinct where the 
registrar testified he had taken written applications from all persons that were 
registered, and compelled them to make those written applications without aid, 
assistance, or memorandum, we figured that after the voter had complied 
with the constitutional provision and made a written application then that 
registrar was the judge of his qualifications, and if the man was improperly 
registered it was voidable solely and could not be attacked by us in such a 
proceeding as this, and we did not bother with them. 

The Chairman. Your contention is that they are merely voidable? 

Mr. Paul. Yes. 

The Chairman. And should not be thrown out? 

Mr. Paul. And should not be thrown out. I have been so sure I was right 
in my position that I have not undertaken to tabulate them, because I did not 
think it was worth the time. I think they were thrown into the record to 
confuse the record. 

Mr. Gilbert. As we are getting at the vitals of this matter, what authority 
have you, outside of the inferior courts of Virginia, on which you base your 
distinction, if there is a distinction, between no application and a defective 
application? 

Mr. Paul. We have no supreme court decision on the question. 

Mr. Gilbert. There are supreme court decisions holding exactly the con¬ 
trary in Kentucky. Of course, those would not be authority if there were 
later decisions in Virginia. 

Mr. Paul. We have none. 

Mr. Gillespie. It did not go to the appellate court? 

Mr. Paul. That is right. 

Mr. Gilbert. Therefore, in the absence of Virginia decisions, I would like 
some decisions from other States that maintain your position. There are a 
number of decisions in my own State taking the contrary view. 

Mr. Paul. I have none right at hand, Mr. Gilbert. 

The Chairman. Mr. Fletcher cited yesterday decisions from the Supreme 
Court of Louisiana. 

Mr. Fletcher. And also South Carolina. 

Mr. Anderson. May I answer the question asked a minute ago? You will 
find the tabulation you requested opposite page 51 of the reply brief, eliminating 
those registered without an application and those registered with assistance, 
which we hold to be void, but not eliminating those registered by defective ap¬ 
plications, and confined to names set up in the original notice and answer. 

Mr. Luhring. Do you mean where the written application was made with 
assistance that application becomes void? 

Mr. Anderson. Undoubtedly. Both parties were guilty of fraud. 

Mr. Fletcher. There is one question I would like to ask Mr. Paul. 

Mr. Paul. If it does not take too long to answer it. 

Mr. Fletcher. That is, if the great stringency was applied in Rockingham 
County in the registration, and such laxity in Albemarle County, how is it that 
in two counties of practically the same size there were 5,000 votes in Rocking¬ 
ham County and only 2,146 in Albemarle County? 

Mr. Paul. I have not the time to go into an explanation or argument about 
that. I think I could do it, but I do not think I am to be diverted from the 
purposes of my argument to answer such a question. 

Mr. Bulwinkle. The reason I had figured that out myself was that when 
vou were speaking about the stringency in Rockingham County with 45,000 
people there were 6,479 votes cast. In Albemarle County, where you claim 
there was great laxity, with a population of 40,000, only 5,000 less, there were 

3.543 votes cast. . 

Mr. Paul. I do not think that contradicts my contention. Political lines were 

very sharply drawn in Rockingham County. Both parties worked very hard. 

Mr. Bulwinkle. You stated a while ago they were very close on registration, 
and a good many white men could not vote. 


93942—22-7 



98 


PAUL VS. HARRISON. 


Mr. Paul. Yes. The record will bear it out. 

The Chairman. What about the colored population in Albemarle County as 
compared with the colored population in Rockingham County? 

Mr. Paul. Rockingham County is what is generally called a white county. 
There are practically no Negroes there. 

The Chairman. How large is the colored population in Albemarle County? 

Mr. Paul. I could not estimate it. I suppose it is two-fifths of the total popu¬ 
lation—I am just informed that it is not more than one-fiftli of the total popula¬ 
tion. 

The Chairman. If practically none of the colored people were registered, 
that would account for part of it. 

Mr. Rulwinkle. The same would apply to the other counties—Shenandoah, 
as compared with Clarke. 

Mr. Paul. Albemarle County is so overwhelmingly Democratic that there is 
not that active, constant interest that brings out the votes, that compels people 
to be qualified voters, that there is in these two counties where both sides work 
as hard as they can. 

Mr. Bulwinkle. The only thing that bothers me is the statement made by 
you that just because it was a Democratic county the bars were thrown down so 
that anybody could register and vote. 

Mr. Paul. I think the record shows the bars were thrown down. 

Mr. Bulwinkle. I did not know but perhaps you wanted to make an estimate 
of your own. 

Mr. Paul. Are there any more questions about this registration? I want to 
pass to another thing which I think is one of the most important things in the 
entire case. 

I think I made it plain in the respect to the statement that we acquiesced 
in this procedure. We have attacked here the registration which took place 
just before the 1920 election. We didn’t know anything about them until 
then. The only time we could attack it was between registration day, October 
2, and election day, November 2—30 days. We had no means of finding out. 
The notices were not posted, contrary to the statement made yesterday, in most 
of the precincts, and were not returned to the clerk’s office. 

Mr. Fletcher. The record will not show that they were not posted. 

Mr. Paul. Yes. In your own county, at Amissville, Mr. Latham testified he 
did not post them. 

Mr. Fletcher. I concede that; but where else? 

Mr. Paul. Mount Crawford precinct, in Rockingham County. 

Mr. Fletcher. I think not. 

Mr. Paul. We had no means of knowing. If we had even known their names 
we would not have known the process by which they had been registered. We 
certainly had a right to presume the registrar was going to comply with the 
law, and we should not be supposed to go around digging into every registrar’s 
books to find out how much he had violated the law. 

In regard to purging the books, section 107 does not provide we can purge 
them. It provides the electoral board may purge the books, and does not give 
us the right to touch them. 

Mr. Fletcher. What about three qualified voters? 

Mr. Paul. Three qualified voters can not do it, except after the electoral 
board has decided they can be purged. Then they can come in and set up the 
names they ask to be stricken off. 

There is one thing which I think is one of the most important things in this 
whole case, and that is the conduct of election on election day. I do not touch 
on the poll taxes, because that is amply covered in the briefs, almost too amply, 
considering the number of votes involved. The provision for the payment of 
poll tax is, of course, an extremely important thing, and is conceded to be 
mandatory. 

One of the three essentials for a qualified voter is the provision that if the 
voter is registered after the 1st day of January, 1904, he shall, unless physically 
unable, prepare and deposit his ballot without aid on such printed form as the 
law may require. It was said yesterday that the evidence in here was very 
indefinite and vague as to what assistance was given in marking ballots at the 
precincts of which we complain, or as to what assistance was allowable. 

Section 163 of the Code of Virginia—election laws, page 36—deals specifically 
with this. It provides that “ except as provided by section 166 ”—and this 
latter is the section which gives the voter registered prior to 1904 the right 


PAUL YS. HARRISON. 


99 


to assistance from a judge of his own selection—“no person shall advise 

vote or’in^r?*m elector, by writin ^ word, or gesture, as to how he shall 
< e 01 mark Ins ballot after the same has been delivered to him by the judges 

.mint ^r 11 ' A - n *I perSon vlola , tin g the Provisions of this section shall be named 

. llnsdemea , nor ’ and ll P° n conviction thereof shall be fined not less 

than $.>00 nor more than $1,000 and confined in jail six months” That is the 
most severe penalty imposed by the entire election laws. The provision is verv 
strict that no assistance shall be given by writing, word, or gesture as to how 
lie shall mark the ballot. 

In 01 tliat strict Provision and severe penalty, we call attention to 

the evils that must have grown out of the indiscriminate marking of ballots for 
everybody that applied or desired it in the counties of Albemarle, Clarke, and 
riedeiick. In Rockingham, Page, Greene, and Shenandoah Counties that law 
is rigidly enforced. In those four counties there are only three precincts where 
it was violated. One was Mount Crawford, a heavy Democratic precinct and 
the other two were in Shenandoah. In one of these it was violated for the first 
time, apparently, at the election in dispute, and the proposition to violate it 
was made by the two Democratic judges, and the Republican judge for some 
leason acquiesced in it. In the other precinct, which was a Republican precinct, 
it was violated, but inasmuch as one of the Democratic judges stated that he 
was acting that day for the Democratic county committee, I don’t suppose the 
Democrats lost much by it. They had two out of three judges anyhow. 

The evidence shows in this case that in practically every precinct in Albe¬ 
marle County and Frederick County and the city of Winchester, and the great 
majority of precincts in Clarke County, the judges of election prepared the 
ballots for everybody who desired it. All of the women voted for the first time, 
and a great many were unacquainted with election procedure and they did 
desire it. They went further, and in certain precincts they solicited voters to 
allow them to mark their ballots. The evidence in this record will show that 
in these counties the ballots of the majority of the people who voted were pre¬ 
pared by the judges of election. They say that some of these were people who 
were entitled to assistance. Yes; those registering prior to 1904, but they are 
passing every year and have become a very small number, probably not over 
15 or 20 per cent of the entire electorate. The judges of election at Middletown, 
in Frederick County, testified that the two Democratic judges that day actually 
marked the ballots of at least 200 of the 255 people who voted there. 

Mr. Hudspeth. What should be done with that precinct? 

Mr. Paul. That should be thrown out entirely. 

The Chairman. On the ground that it was such an utter disregard of the 
election laws that it would be impossible to determine that there was an illegal 
election held? 

Mr. Paul. l r es. During the framing of the present constitution one of the 
members of the convention, Mr. Wysor, briefly summarized the essentials of 
a qualified voter thus: “When a man wants to become a voter in Virginia he 
must make his own application to register, he must pay his own poll tax, and 
he must mark his own ballot.” Leaving out the poll tax for the present, the 
other two provisions were absolutely disregarded in these Democratic com¬ 
munities. They placed upon the books the names of hundreds of persons with¬ 
out any test as to whether they could read or write and with no application 
whatever. When these illegal registrants came to the polls to vote they took 
them into the booths and marked their ballots for them. There was no test 
throughout the whole process to insure that any of those persons could read 
or write: that they are not the very class that the constitution meant to bar 
from voting. 

It has been said that signing an oath was a test whether a man could read 
or write. Several registrars testified they would not register a man simply on 
the test that he could read and write; that he had to do more than that. The 
registrar at Attobine said they had to do more than write their name. He 
said they had to write an intelligent application. Rut in a good many pre¬ 
cincts, even where the oath was taken and signed up, there is no assurance 
that any of those people could read or write other than to sign the name on 
the blank line at the bottom of the printed oath. 

There were hundreds of ballots marked and hundreds of names put on the 
books without any test as to their literacy, and absolutely ignoring the ques¬ 
tion of their ability to mark their own ballots. The registrar at Middletown 


100 


PAUL VS. HARRISON. 


said four-fifths of the voters there had their ballots marked by the Democratic 
judges. In Ivy precinct, in Albemarle County, the registrar said that there 
were “ very few ” voters who did not have their ballots marked by the Demo¬ 
cratic judges that day. Those are instances. It appears in all these precincts— 
men, women, without regard to physical disability when they were registered, 
or anything else. 

Something was said to the effect that they might have been physically dis¬ 
abled. They marked the ballots in those precincts for everybody, regardless of 
the date of registration, physical disability, or anything else. In one precinct 
they put a judge of election outside to greet them as they caipe in and offer 
to mark them. 

Mr. Fletcher. Was that in Ivy? 

Mr. Paul. No. Please do not interrupt me unless you have some serious 
question to ask. 

In addition to that there were not any booths in most of these precincts 
where people could mark their ballots, and they compelled the people to mark 
their ballots on a table in front of the judges. 

The Chairman. On yesterday Mr. Fletcher said where that occurred the table 
was in a back room where the judges could not see it. 

Mr. Paul. I remember that. There was a table in the back room at one or 
two places. This record is full of evidence of precincts where they had to 
put them right down in front of the judges on the table, and the judges saw 
them mark them. 

If you will permit me to step outside the record I will tell you a significant 
incident that occurred to me in Richmond last week. I met a charming couple 
there, and they said they were mighty glad to meet me because they got into 
a lot of trouble on my account. They laughingly remarked they had always 
been Democrats, and when they went to vote in the Democratic primary last 
year between Gov. Trinkle and Mr. Tucker, the judges refused to permit them 
to vote on the ground they had voted for Paul for Congress in 1920. There 
before a crowd they would not let them vote and made them go home because 
they voted for Paul in 1920 and therefore could not participate in the Demo¬ 
cratic primary. How did they know it? Because they had been compelled to 
mark their ballots on the table right in front of the judges of election. I 
asked if they prepared their own ballots, and they said they did but they 
marked their ballots on the table in full view of the judges. Those people were 
not deterred in that particular instance, but the action of those judges in 
humiliating them in the presence of that crowd would have a tendency to deter 
those who did not have the courage to withstand it. % 

The Chairman. You contend that that portion of the constitutional provision 
providing for a secret ballot was violated in a great many precincts? 

Mr. Paul. Absolutely. 

The Chairman. And you say that because of that the precinct should be 
thrown out? 

Mr. Paul. Yes, sir. 

The Chairman. On the ground there was no legal election held, as contem¬ 
plated by the constitution? 

Mr. Paul. Y'es. If you will take an individual instance, at Scottsville, one 
of the worst precincts in Albemarle County, it will illustrate how those things 
were done. All the ballots in Albemarle County were delivered by a man who 
had no business to have his hands on them. In a great many instances he 
delivered them, not to the election officials but to the Democratic workers in 
the county, who turned them over to the election officials, and unsealed. At 
Scottsville they threw away the registration books early in the day because 
they could not make head or tail out of them. They then voted people from the 
poll-tax list, and if they were not on there they asked George Rohinson, a by¬ 
stander, and without referring to any memorandum he told them what to do. 
The contestee put on nine witnesses from Scottsville in an attempt to show 
that the election there was not without the law, and it turned out that every 
one of the witnesses he put on the stand was an illegal voter—every one of 
them. Some had not paid their poll tax; some had not lived in the county a 
year; some had not registered; their names were not even on the books. Do 
you mean to say the returns from that precinct carry any assurance of a legal 
election? Do they carry any conviction that they are the result of an honest, 
decent orderly election? That is merely an example. 


PAUL VS. HARRISON. 


101 


I here was a sweeping statement made this morning that, everything in that 
district was absolutely honest, and the statement I made in my brief that the 
only thing lacking to prove fraud was the admission of the election officers 
that there was fraud was sweepingly attacked. I repeat that statement. 

When a judge of election who has served for years tells me on the stand that 
lie does not know that a man has to pay his poll tax, or that a man has to live 
in the county a year, before he has a right to vote, when he voted at least nine 
men who had no right to vote for three or four reasons then I know he is not 
telling the truth. A man can’t be a judge of election for six or eight years and 
not know the fundamentals of the law. 

At. Covesville the judges voted five who had never paid any poll tax, and in 
many instances they told them their poll tax was paid when they did not pre^ 
tend to look on the list and see, but told them to go ahead and vote. Ope man 
was asked who he was going to vote for before they would tell him whether he 
was on the tax list, and when he said he was going to vote for Harrison they 
told him to go ahead, although his name was not on the list and he had not 
paid his taxes. 

And you say, because this man says he was strictly honest, there was no 
fraud in this election. We didn’t expect him to get on the stand and say “ I 
am a thief.” I say this record is absolutely replete with that sort of thing. 

I don’t want to trespass on the patience of this committee, and possibly I 
have run beyond my time. I say those are examples. Conditions in the city 
of Winchester, the home of the contestee, are as bad, in many respects, as any 
other place in the district. There they had no voting booths at all until 10 
o’clock in the contestee’s own precinct, at which time about 250 people had voted. 

Mr. Hudspeth. What has been the political complexion of Winchester in the 
past? 

Mr. Paul. Democratic. 

Mr. Bul winkle. The vote was rather close in this contest? 

Mr. Paul. Yes. There was a factional fight over there in Judge Harrison’s 
home town. 

The Chairman. Your time has expired. 

Mr. Paul. I just want to close by saying, if you will permit me about 3 
minutes, that I simply want to repeat what I said when I started out. To ask 
that you will read the record in this case, or so much as it is possible to do, 
and will read the briefs with reference to each other and will follow the 
references to the evidence given in those briefs, because the briefs prepared by 
me are accurate and complete. If that is done, I haven’t the slightest doubt 
in the world of the outcome of this contest if this committee has grasped what 
we have tried to present to it—a true understanding of the situation in the 
seventh district. 

As far as my own personal fortunes are concerned, they are not involved, 
because my fortunes are not dependent on the occupancy of a seat in the House 
of Representatives, high as that honor is, but my interest as a citizen is in¬ 
volved. and knowing these conditions as I do I know they can not continue and 
give us a deceht and orderly government in Virginia. 

For those reasons I am now urging you most earnestly to consider the 
contentions we have made here. 

There has been filed a tabulation of certain precincts, which Judge Harrison 
has left for the record. I never saw it until it was handed in here. I think 
I might have had an opportunity to look at it yesterday, but I never heard 
of it before. If the committee will permit and deem wise, I should like to 
have the right to make a comment on that. 

The Chairman. We will permit you to file a statement in reply to it. 

Mr. Fletcher. There is one statement I would like to get into the record, 
that in considering this tabulation of Mr. Paul the names set out in the notice 
and answer should not alone be considered, but also the additional names which 
were included by either party other than the names which were specifically 
mentioned in the notice and exhibits. 

Mr. Paul. Names* are mentioned in the record which are not set out in the 
notice, but in our tabulation of illegal votes we confine ourselves to names 
specifically set up in the notice, believing we were required to do so. 

Mr. Fletcher. He confined himself to the names set out in the exhibit to the 
notice and answer. 

Mr. Paul. That is right—the notice and answer. 


102 


PAUL YS. HARRISON. 


Mr. Fletcher. Blit other evidence was taken, and we have additional names 
we might ask to be considered. 

Mr. Anderson. On what theory do you ask that? 

Mr. Fletcher. In the decisions of Congress the names need not be set out of 
parties alleged to be unqualified voters. It is not necessary that the names 
accompany the allegations. Other names can be considered; and even if no 
names are set out, it is immaterial. 

Mr. Anderson. We want to say that we thought we were proceeding on the 
legal pleadings, and that the evidence must respond to the pleadings. 

The Chairman. If there is nothing further, the hearing is adjourned. 

(Thereupon, at 2.30 o’clock p. m., the hearing was concluded, and the com¬ 
mittee went into executive session.) 
























. 
























% 



















































































































« 


























































































































































































































































LIBRRKY ur 













* 













0 012 322 667 7 































































s 


























































































































































































































































